Opinion; Subjects: JORDAN, 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.16-19604(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. 39/2016 concerning Adam al Natour (Jordan)
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. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed that mandate and most
recently extended it for a three-year period in its resolution 24/7 of 26 September 2013.
2.
In accordance with its methods of work (A/HRC/30/69), on 22 June the Working
Group transmitted a communication to the Government of Jordan concerning Adam al
Natour. 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 or
her 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 Covenant (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);
(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,
United Nations
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General Assembly
Distr.: General
9 November 2016
Original: English
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religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or other status, that aims towards or can result in ignoring the equality of human
beings (category V).
Submissions
Communication from the source
4.
Adam al Natour is a Polish and Jordanian national. He was born in 1995 and
normally resides in Düsseldorf, Germany. He holds a Polish passport. Prior to his arrest, he
was a student. On 27 June 2015, Mr. Al Natour moved to Amman to study Arabic.
Reportedly, he was arrested, severely tortured and sentenced on the basis of Jordanian anti-
terrorism law. Currently, he is detained in Muwaqqar prison II and his appeal before the
Court of Cassation is pending.
5.
According to the information received, on 12 August 2015, Mr. Al Natour had been
helping his father in his garage, located in Al Bayader, Amman, when 15 members of the
General Intelligence Directorate — 14 of whom in civilian clothing and 1 in military
uniform — arrived in three cars and arrested him. Since Mr. Al Natour neither spoke nor
understood Arabic, his father, while translating for him, asked the Directorate officers for
the reason for his arrest. Members of the Directorate, however, did not provide any official
reason for the arrest nor did they provide an arrest warrant issued by the judicial authority.
Mr. Al Natour was consequently brought to the premises of the Directorate in the Jandawil
district of Amman, in Wadi al-Seer area.
6.
On 13 August 2015, Mr. Al Natour’s father went to the premises of the General
Intelligence Directorate to visit his son. However, he was prevented from having any
contact with his son and was only allowed to meet with a Directorate official, who
informally informed him that his son was being held because of his “jihadi thoughts”.
7.
For three weeks after the arrest of Mr. Al Natour, his father was not allowed to visit
him. The first visit was held in the presence of a General Intelligence Directorate officer.
Reportedly, during that meeting, Mr. Al Natour informed his father that he had been beaten
and subjected to electric shocks during the first days of his detention. His father claims that
at that time his son was in very poor physical and psychological condition.
8.
Late in September 2015, Mr. Al Natour was brought before the General Prosecutor
of the State Security Court, who was wearing a military uniform. Allegedly, the General
Prosecutor had forced Mr. Al Natour to sign a document. The source claims that Mr. Al
Natour did not know its content since it was written in Arabic and he had not been provided
with a translation. Allegedly, he had been promised to be released the day following the
signature of the document.
9.
On 28 September 2015, Mr. Al Natour was transferred to Muwaqqar prison II,
where he was placed in an isolated cell and allowed access to sunlight and to go outside his
cell only for half an hour per week.
10.
On the same day, Mr. Al Natour was allowed to appoint his lawyer. At the end of
October 2015, he was indicted on the basis of Jordan Anti-Terrorism Law No. 55 of 2006.
In November 2015, he was permitted to meet his lawyer for the first time, one week prior to
his first hearing before the State Security Court. During the first three hearings held before
that Court, Mr. Al Natour was not provided with a certified court interpreter. The source
claims that he was thus unable to understand what was said and written by the prosecution.
11.
On 15 February 2016, Mr. Al Natour was sentenced by the State Security Court to
four years of imprisonment and hard labour in accordance with articles 3.3 and 7.3 of the
Jordan Anti-Terrorism Law, for “joining an armed group and a terrorist organization”. The
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conviction was based on a signed confession, allegedly extracted under duress, and the
alleged fact that he had travelled to the Syrian Arab Republic through Turkey, which Mr.
Al Natour denied. In fact, neither his Jordanian nor Polish passports show either a Turkish
or a Syrian visa.
12.
On 14 March 2016, Mr. Al Natour’s lawyer appealed his case to the Court of
Cassation. The source also asserts that, on 10 April 2016, the defence lawyer submitted a
complaint to the Jordanian National Centre for Human Rights. Allegedly, there has been no
reply from the National Centre for Human Rights.
13.
In the light of the aforementioned information, the source claims that Mr. Al
Natour’s deprivation of liberty was not in compliance with the due process standards and,
therefore, constitutes arbitrary deprivation under category III of the arbitrary detention
categories referred to by the Working Group when considering cases submitted to it.
14.
The source argues that the present case meets the requirements of category III
because Mr. Al Natour was arrested without an arrest warrant issued by a judicial authority.
He was not informed about the charges against him for more than a month and a half. Mr.
Al Natour was not brought before a judicial authority until the court hearing began late in
November 2015.
15.
The source asserts that the arbitrary nature of Mr. Al Natour’s detention can be
determined on the basis of the violations of the basic minimal rules of treatment of
prisoners and minimum international standards of due process, including the right to
prepare a defence, the right to a public hearing by an independent and impartial tribunal and
the right to be free from torture or other cruel, inhuman or degrading treatment or
punishment. The detention facility in which he was held was not subject to any regular
independent scrutiny or oversight from the outside and had not been listed as an official
detention facility in the country.
16.
With regard to the violation of the fair trial standards, the source claims that Mr. Al
Natour was not allowed to communicate with his lawyer until mid-November 2015, i.e.
four months after his arrest. It is argued that this amounts to a violation of his rights to legal
assistance and to prepare his defence.
17.
Furthermore, despite the fact that Mr. Al Natour neither spoke nor understood
Arabic, all legal proceedings were carried out in that language, and Mr. Al Natour was not
provided with a translation of the charges or of the prosecution file or the assistance of an
interpreter until the fourth hearing of his trial. The source argues that this constituted a
violation of his right to an interpreter.
18.
The source claims that Mr. Al Natour was not tried by a competent, independent and
impartial tribunal, because the State Security Court, which is designated by State Security
Law No. 17 of 1959 to prosecute cases of terrorism, does not meet international human
rights standards criteria. In that regard, the source affirms that the Court itself cannot be
seen as impartial and independent, because its judges are appointed and can be removed by
the Prime Minister. It is composed of two military judges and one civilian one.
Furthermore, the General Prosecutor of the State Security Court has the rank of a military
officer and is under the same administrative authority as the General Intelligence
Directorate intelligence officers, i.e. the Ministry of Defence.
19.
Finally, the source claims that Mr. Al Natour was subjected to incommunicado
detention twice, first during the first three weeks of detention at the premises of the General
Intelligence Directorate and second during his hunger strike while in Muwaqqar prison II.
20.
The source argues that, after Mr. Al Natour had been transferred to Muwaqqar
prison II, he was allowed to receive visits from his father for only one hour, once per week,
during the period from 2 October 2015 to 4 March 2016. On 4 March 2016, those
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conditions of detention changed dramatically after Mr. Al Natour began his five-week long
hunger strike, which was carried out with some co-detainees in protest against their
sentences. Allegedly, during that time, Mr. Al Natour was kept in a strict solitary
confinement regime, while being prevented from any contact with the other prisoners.
Furthermore, he was left incommunicado as he was not allowed any access to the outside
world or to receive medical visits.
21.
The source further claims that, from 21 to 25 March 2016, Mr. Al Natour was
subjected to severe beatings and other forms of torture by the prison guards to force him to
end his hunger strike.
22.
On 20 May 2016, the aforementioned restrictions were lifted and Mr. Al Natour
could see his father. He was then allowed to be examined by a doctor who had been
appointed by the authorities. However, neither he nor his family were provided with the
results of that examination. Allegedly, he was not allowed to see his father or a doctor for
such a long time so that most of the torture marks on his body had disappeared.
Nevertheless, Mr. Al Natour’s father noticed that he was suffering from difficulties in
breathing and had lost hearing in his left ear.
Response from the Government
23.
On 22 June 2016, the Working Group addressed a communication to the
Government of Jordan requesting detailed information about the current situation of Mr.
Adam Al Natour. The Working Group also requested the Government to clarify the factual
and legal provisions justifying his detention and the details regarding the conformity of his
trial with international law, in particular the norms of international human rights law that
Jordan has ratified.
24.
The Working Group regrets that it did not receive a response from the Government
to the communication. The Government did not request an extension of the time limit for its
reply, as provided for in the Working Group’s methods of work.
Discussion
25.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion in conformity with paragraph 15 of its methods of work.
26.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations (see
A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
27.
The Working Group has noted with concern the source’s allegations about the lack
of independence and impartiality by the State Security Court. In that regard, the Working
Group concurred1 with the repeated recommendation of the Human Rights Committee that
Jordan abolish special courts such as the State Security Court.2
1 See the report of the Working Group on the promotion and protection of all human rights, civil,
political, economic, social and cultural rights, including the right to development (A/HRC/7/4), para.
59.
2 See the recommendation of the Human Rights Committee in para. 12 of its 2010 concluding
observations (CCPR/C/JOR/CO/4).
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28.
Following the analysis of the information submitted by the source concerning the
handling of Mr. Al Natour’s case by the State Security Court, the Working Group would
like to reiterate its concern expressed in its opinion No. 53/2013 that the 2011 reform
process and the decision taken by the Council of Ministers on 1 September 2013 on the
basis of royal orders have not brought the Jordanian rules about the State Security Court
into compliance with international law.
29.
As the State Security Court does not meet the fundamental principles of
independence and impartiality, it fails to uphold Mr. Al Natour’s right to a fair and public
hearing by a competent tribunal in the determination of any criminal charge against him
under article 10 of the Universal Declaration of Human Rights and article 14 (1) of the
Covenant.
30.
In the present case, Mr. Al Natour was arrested without a warrant and without being
informed of the reasons for his arrest or charges against him or being promptly brought
before a judge. He was denied unhindered communication with his lawyer or the assistance
of an interpreter during the trial and convicted exclusively on the basis of confessions
obtained under torture in the State Security Court.
31.
The Government did not provide any explanation or justification for the serious
violations of, inter alia, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, the Covenant and the Arab Charter on Human Rights,
to which it is a party, which imposes specific obligations to order a prompt and impartial
investigation into allegations of torture and to ensure that any statement made as a result of
torture is not invoked as evidence in any proceedings.
32.
The guarantees of a fair trial set out in articles 10 and 11 of the Universal
Declaration of Human Rights and in article 14 of the Covenant grant the right to legal
assistance and representation and to other measures of protection in order to ensure that no
evidence is obtained by confession under torture. Under article 14 (3) (g) of the Covenant,
no person may be compelled to testify against himself or to confess guilt. In its
jurisprudence, the Human Rights Committee stated that such a clause “must be understood
in terms of the absence of any direct or indirect physical or psychological coercion from the
investigating authorities on the accused with a view to obtaining a confession of guilt”.3
33.
In its communication No. 1769/2008, Bondar v. Uzbekistan, the Human Rights
Committee found violations of article 14 (3) (b) and (d) on the grounds that the victim was
not provided with a lawyer during the interrogation and his right to have the assistance of
the lawyer of his own choosing had been denied; and of article 14 (3) (g) owing to a
confession that had been obtained under torture.4
34.
The Working Group recalls that the Human Rights Committee, in paragraph 41 of
its general comment No. 32 (2007) on the right to equality before the courts and tribunals
and to a fair trial, stated that:
[A]rticle 14, paragraph 3 (g), guarantees the right not to be compelled to testify
against oneself or to confess guilt. This safeguard must be understood in terms of the
absence of any direct or indirect physical or undue psychological pressure from the
investigating authorities on the accused, with a view to obtaining a confession of
3 See Human Rights Committee communications No. 1033/2001, Singarasa v. Sri Lanka, Views
adopted on 21 July 2004, para. 7.4; No. 253/1987, Kelly v. Jamaica, Views adopted on 8 April 1991,
para. 5.5; No. 330/1988, Berry v. Jamaica, Views adopted on 7 April 1994, para. 11.7; and No.
912/2000, Deolall v. Guyana, Views adopted on 1 November 2004, para. 5.1.
4 See Human Rights Committee communication No. 1769/2008, Bondar v. Uzbekistan, Views adopted
on 25 March 2011, paras. 7.4 and 7.6.
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guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to
article 7 of the Covenant in order to extract a confession. Domestic law must ensure
that statements or confessions obtained in violation of article 7 of the Covenant are
excluded from the evidence, except if such material is used as evidence that torture
or other treatment prohibited by this provision occurred, and that in such cases the
burden is on the State to prove that statements made by the accused have been given
of their own free will.
35.
The Working Group takes note of the judgment by the International Court of Justice
in questions relating to the obligation to prosecute or extradite (Belgium v. Senegal),5 in
which the Court expressed the opinion that:
[T]he prohibition of torture is part of customary international law and it has become
a peremptory norm (jus cogens). That prohibition is grounded in a widespread
international practice and on the opinio juris of States. It appears in numerous
international instruments of universal application (in particular the Universal
Declaration of Human Rights of 1948, the 1949 Geneva Conventions for the
protection of war victims; the Covenant of 1966; General Assembly resolution
3452/30 of 9 December 1975 on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), and it
has been introduced into the domestic law of almost all States; finally, acts of torture
are regularly denounced within national and international fora.
36.
Similarly, the Committee against Torture, in its general comment No. 2 (2008) on
implementation of article 2, recalled that “the obligation to prevent torture in article 2 is
wide-ranging” (para. 3), and added that the measures adopted to do so were not static since
the most effective measures are in a process of continual evolution (para. 4) and are not
limited to those measures contained in articles 3-16 of the Convention (para. 1). The
obligation to prevent torture applies to all contracting parties, particularly when they assess
the risk of torture and cruel, inhuman or degrading treatment to which individuals may be
subjected in a third country.
37.
One of the aims of the provisions of article 14 of the Covenant is to provide
guarantees against all forms of physical or psychological pressure, direct or indirect, by the
authorities on the accused with a view to obtaining a confession. The right not to be
compelled to testify against oneself or to confess guilt and access to counsel and legal aid
are not only measures intended for the protection of the interests of the individual, but also
measures in the interest of society as a whole of the trust in and the effectiveness of the
judicial process and of the reliability of evidence. Confessions made in the absence of legal
counsel are not admissible as evidence in criminal proceedings, and this applies especially
to confessions made during the time spent in police custody.
38.
In the present case, the Working Group considers that the coercive measures applied
against Mr. Al Natour constitute a violation of the international norms against torture,
including the aforementioned norms. The use of evidence extracted from such coercive
measures severely hampered the assurances of fair trial guaranteed to Mr. Al Natour.
39.
The Working Group urges the competent State authorities to proceed to a prompt
and impartial investigation in accordance with article 12 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
5 See International Court of Justice, Questions relating to the obligation to prosecute or extradite
(Belgium v. Senegal), Judgment of 20 July 2012, para. 99. Available from www.icj-
cij.org/docket/files/144/17064.pdf.
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40.
The Working Group finds that other violations severely compromised Mr. Al
Natour’s due process and fair trial rights in the present case. Mr. Al Natour was not
provided with a warrant or informed of the reason for his arrest at the time of his arrest by
the General Intelligence Directorate agents in violation of article 9 of the Universal
Declaration of Human Rights and article 9 (1) and (2) of the Covenant. Nor was he
promptly informed of the charges against him or brought before a judge in accordance with
articles 9 (2) and (3) and 14 (3) (b) of the Covenant. He was also not allowed to institute
habeas corpus proceedings contrary to article 9 (4) of the Covenant.
41.
Mr. Al Natour was able to meet his attorney for the first time only one week before
the first court hearing, which hardly provided adequate time to prepare his defence in
accordance with article 9 (3) (b) of the Covenant, and he was denied the free assistance of
an interpreter in the first three hearings before the court in violation of his right under
article 9 (3) (f) of the Covenant. As highlighted above, his conviction based solely on his
confession extracted under torture in violation of article 9 (3) (g) of the Covenant denied
him of the guarantees necessary for his defence under article 11 (1) of the Universal
Declaration of Human Rights and article 9 (3) of the Covenant.
42.
The condition of Mr. Al Natour’s detention also constitutes serious violations of the
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules), rule 1 of which explicitly bans torture and other cruel, inhuman or
degrading treatment or punishment, for which no circumstances whatsoever may be
invoked as a justification.
43.
The lack of medical attention and failure to address Mr. Al Natour’s breathing and
hearing impairments, which were likely to have been caused by his treatment in prison, is a
violation of rule 32 (3) and rule 44 (1). At the institutional level, the lack of regular
oversight of the prison facilities violates rule 55, which stipulates that inspections must be
made regularly by qualified and experienced inspectors appointed by a competent authority.
44.
Given the above-mentioned observations, the Working Group finds that the
violations of Mr. Al Natour’s right to a fair trial are of such gravity as to give his
deprivation of liberty an arbitrary character, falling within category III of the arbitrary
detention categories referred to by the Working Group when considering cases submitted to
it.
45.
The Working Group recalls article 9 (1) of the Covenant, whereby no one shall be
deprived of his liberty except on such grounds and in accordance with such procedure as
are established by law. The failure of the Jordanian authorities to invoke any legal basis to
justify the deprivation of liberty of Mr. Al Natour for more than a month and a half, from
the day of arrest on 12 August to the end of September 2015, renders his detention for the
given period arbitrary, falling within category I of the arbitrary detention categories referred
to by the Working Group when considering cases submitted to it.
Disposition
46.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Adam al Natour, being in contravention of articles 3, 5,
9, 10 and 11 of the Universal Declaration of Human Rights and articles 7, 9, 10 and
14 of the International Covenant on Civil and Political Rights, is arbitrary and falls
within categories I (for the period specified in para. 45) and III of the arbitrary
detention categories referred to by the Working Group when considering cases
submitted to it.
47.
Consequent upon the opinion rendered, the Working Group requests the
Government of Jordan to take the necessary steps to remedy the situation of Mr. Al Natour
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without delay and bring it into conformity with the standards and principles set forth in the
Covenant and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
48.
The Working Group considers that, taking into account all the circumstances of the
case, the adequate remedy would be to immediately release Mr. Al Natour and accord him
an enforceable right to compensation in accordance with article 9 (5) of the Covenant and
article 14 (1) of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. In addition, the competent authorities should proceed to a prompt
and impartial investigation in accordance with article 12 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
49.
The Working Group also urges the Government of Jordan to undertake legislative
and institutional reforms to ensure that the State Security Court respects the basic due
process and fair trial guarantees of the individuals.
50.
In the light of the allegations of torture and other ill-treatment inflicted upon Mr. Al
Natour, the Working Group considers it appropriate, in accordance with article 33 (a) of its
methods of work, to refer the allegations to the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment for appropriate action.
Follow-up procedure
51.
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 Mr. Al Natour has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Al
Natour;
(c)
Whether an investigation has been conducted into the violation of Mr. Al
Natour’s rights 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.
52.
The Government is invited to inform the Working Group of any difficulties 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.
53.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council informed of the
progress made in implementing the recommendations, as well as any failure to take action.
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54.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them 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.6
[Adopted on 26 August 2016]
6 See Human Rights Council resolution 24/7, paras. 3 and 7.