Opinion; Subjects: BAHRAIN, 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.17-01355(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-seventh session,
21-25 November 2016
Opinion No. 55/2016 concerning Mahmood Abdulredha Hasan al-
Jazeeri (Bahrain)
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 the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/30/69), on 22 June 2016 the
Working Group transmitted a communication to the Government of Bahrain concerning
Mahmood Abdulredha Hasan al-Jazeeri. 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);
United Nations
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General Assembly
Distr.: General
30 January 2017
Original: English
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(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
Mahmood Abdulredha Hasan al-Jazeeri, born in November 1988, is a 27-year old
Bahraini who works as a journalist with Al-Wasat newspaper, the only independent
newspaper in the country. He reports on the activities of the Bahraini Parliament and Shura
Council. In his last report, he covered a politically sensitive topic, namely, that a Shura
Council member had demanded the removal of the housing units of those who had had their
citizenship revoked by the authorities. He is well known for his articles about political
detainees and his coverage of discussions in the Shura Council and Parliament.
5.
On 28 December 2015 at approximately 1 a.m., security forces raided the house of
Mr. al-Jazeeri’s father. They then moved to Mr. al-Jazeeri’s nearby apartment, confiscating
his laptop computer and mobile telephone, and arrested him. They did not present a legal
warrant to arrest Mr. al-Jazeeri, nor did they inform him or his family of the reason for his
arrest. Mr. al-Jazeeri was allowed one short phone call, a few hours after his arrest. During
the call, Mr. al-Jazeeri told his family that he was being detained at the General Directorate
of Criminal Investigations.
6.
After his arrest, security forces interrogated Mr. al-Jazeeri for five days about his
alleged relationship with Al-Wafa opposition movement, an unauthorized political
movement. They subjected him to ill-treatment to force him to confess. They prevented him
from sitting and sleeping for three days. They cursed and insulted him and his sect. Security
forces interrogated him for up to five hours at a time, which left him exhausted. They
forced him to sign papers of confession while blindfolded. Security forces did not allow
Mr. al-Jazeeri’s lawyer to attend his interrogation at the General Directorate of Criminal
Investigations. Moreover, they did not permit the lawyer to meet with Mr. al-Jazeeri at all.
7.
On 6 January 2016, the public prosecution issued a statement accusing Mr. al-
Jazeeri of terrorism charges, including spying for a foreign country, joining an unauthorized
political movement and inciting hatred against the regime. Authorities broadcasted his
charges, and those of other defendants in the case, before his first court hearing.
8.
On 4 June 2016, he was transferred to the custody of the public prosecution, where
he was informed of his charges for the first time. He was accused of being a member of
“the Islamic movement Al-Wafa” and writing the political statements of the February 14
Youth Coalition. He denied all charges. The public prosecution remanded him for 90 days
in detention pending investigation.
9.
The source views that the arrest and detention of the individual is the result of the
peaceful exercise of his right to freedom of expression. The source submits that the
treatment of Mr. al-Jazeeri by the Government of Bahrain is illegal under international law,
in particular, articles 9 and 19 of the Covenant.
10.
The source notes that Mr. al-Jazeeri cannot apply for relief from the Bahraini
judicial system because the judicial system is complicit in his abuse. Due to the
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involvement of the Bahrain Government in the persecution, Mr. al-Jazeeri believes that
applying for relief from the Government will prove futile and may result in retaliation.
Response from the Government
11.
On 22 June 2016, the Working Group transmitted the allegations from the source to
the Government under its regular communication procedure. The Working Group requested
the Government to provide detailed information before 22 August 2016 about the current
situation of Mr. al-Jazeeri and any comment on the source’s allegations. The Working
Group also requested the Government to clarify the factual and legal grounds justifying his
detention and to provide the details regarding the conformity of the legal proceedings
against him with international law, in particular the norms of international human rights law
that bind Bahrain.
12.
The Working Group regrets that it did not receive a timely response from the
Government to the communication. In addition, 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. The Working Group notes that it is not in a position to consider that the
Government’s response of 23 November 2016 was submitted in a timely manner.
Discussion
13.
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.
14.
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.
15.
The Working Group first considered whether Mr. al-Jazeeri’s arrest and detention
resulted from his legitimate exercise of his rights or freedoms, rendering it arbitrary and
falling within category II.
16.
The Working Group takes note of the fact that Mr. al-Jazeeri is a journalist for
Bahrain’s only independent newspaper and that he is well known for his politically
sensitive articles about political prisoners and activities in the Shura Council and
Parliament.
17.
Furthermore, the Working Group also notes that Mr. al-Jazeeri was charged inter
alia with vague political crimes, such as joining the unauthorized Al-Wafa opposition
movement and inciting hatred against the regime, which was one of the charges brought
against another opposition figure from a minority religious sect in a previous case in which
the deprivation of liberty in Bahrain had been found to be arbitrary.1 Such past records add
considerable weight to the observation that Mr. al-Jazeeri’s arrest and detention were part
of the widespread abuse of power aimed at silencing the critical media. The Government
has failed to refute this observation.
18.
The Working Group notes with concern the ongoing allegations relating to arbitrary
deprivation of liberty in Bahrain. The Working Group has adopted a number of opinions
where it has found the use of arbitrary detention — including detention resulting from the
1 See opinion 23/2015.
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exercise of the rights to freedom of opinion and expression, and peaceful assembly and
association — and the lack of a fair trial.2
19.
Furthermore, the Working Group notes that the Bahrain Independent Commission of
Inquiry, established by the order of the King of Bahrain, found in its report, presented in
Manama on 23 November 2011,3 that there had been numerous arrests and detentions of
journalists during the 2011 crackdown on the press (see para. 1634 of the report). In the
same report, the Commission also acknowledged that an act of vandalism had been
committed against the newspaper’s premises (see para. 1632).
20.
The Working Group notes that the issue of freedom of expression and opinion had
been the subject of numerous recommendations during the first cycle of the universal
periodic review of Bahrain that took place in July 2012.4
21.
Given Mr. al-Jazeeri’s work as an independent journalist and the fact that the nature
of the charges against him are considered to reflect a broader scheme of suppression against
the media, the Working Group considers that there is a violation of Mr. al-Jazeeri’s right to
freedom of opinion and expression guaranteed under the international norms on detention,
including article 19 of the Universal Declaration of Human Rights and article 19 of the
Covenant. The Working Group therefore concludes that the present case falls within
category II.
22.
The Working Group also considered whether the violation of Mr. al-Jazeeri’s right
to a fair trial was of such gravity as to give the deprivation of his liberty an arbitrary
character under category III.
23.
At the onset, Mr. al-Jazeeri was arrested and had his laptop computer and mobile
telephone confiscated without a warrant. He was neither informed of the reason for his
arrest nor promptly informed of his charges, in violation of article 9 (2) of the Covenant. He
was also denied his right to contact his family except for a short telephone call a few hours
after his arrest. Therefore, Mr. al-Jazeeri’s arrest already infringed upon his right to liberty
of person and protection from arbitrary arrest and detention enshrined in articles 3 and 9 of
the Universal Declaration of Human Rights and article 9 of the Covenant.
24.
During the subsequent five-day interrogation, the General Directorate of Criminal
Investigations prevented him from sitting or sleeping and cursed and insulted him and his
sect until he signed a confession while blindfolded. Such inhuman and degrading treatment
itself constitutes a breach of article 5 of the Universal Declaration of Human Rights and
article 7 of the Covenant. In addition, the use of confession extracted under such ill-
treatment that is tantamount if not equivalent to torture for his conviction may also
constitute a violation by Bahrain of article 15 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, to which it is a State party. The
Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),
adopted by the General Assembly in its resolution 70/175 of 17 December 2015, also
prohibits torture and other cruel, inhuman or degrading treatment or punishment, for which
no circumstances whatsoever may be invoked as a justification (Rule 1). Furthermore, the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, adopted by the Assembly in its resolution 43/173 of 9 December 1988,
specifically prohibits taking undue advantage of the situation of detention to compel
confession or incriminating statements (Principle 21).
2 See opinions Nos. 6/2012, 12/2013, 1/2014, 22/2014, 25/2014, 27/2014, 34/2014, 37/2014, 23/2015,
41/2015 and 35/2016.
3 See www.bici.org.bh/BICIreportEN.pdf.
4 See report of the Working Group on the Universal Periodic Review dated 6 July 2012 (A/HRC/21/6).
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25.
Mr. al-Jazeeri’s right to a fair trial has also been gravely undermined throughout the
process of criminal administration. All the while, Mr. al-Jazeeri was denied access to his
lawyer or family members, in violation of the Covenant (article 14 (3) (b)), which
guarantees the right to communicate with a lawyer. It is also indisputable that Mr. al-
Jazeeri’s forced confession — induced by inhuman and degrading treatment — flagrantly
undermined the guarantees necessary for his defence in the criminal proceedings, in
contravention of article 11 (1) of the Universal Declaration of Human Rights. The Body of
Principles also restricts the denial of communication with family or counsel to very
exceptional circumstances (Principles 15, 18 and 19).
26.
As seen above, Mr. al-Jazeeri’s arrest and detention are replete with instances of
grave violations of due process reminiscent of past patterns of State persecution and abuse
of dissident figures in Bahrain. Given those serious violations of due process, the Working
Group considers that the non-observance of Mr. al-Jazeeri’s right to a fair trial is of such
gravity as to give the deprivation of liberty an arbitrary character, under category III.
Disposition
27.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mr. al-Jazeeri, being in contravention of articles 3, 5, 9,
11 and 19 of the Universal Declaration of Human Rights and articles 7, 9, 14 and 19
of the Covenant, is arbitrary and falls within categories II and III.
28.
Consequent upon the opinion rendered, the Working Group requests the
Government of Bahrain to take the steps necessary to remedy the situation of Mr. al-Jazeeri
without delay and bring it into conformity with the standards and principles set forth in the
international norms on detention, including the Universal Declaration of Human Rights and
the Covenant.
29.
The Working Group considers that, taking into account all the circumstances of the
case, the adequate remedy would be to immediately release Mr. al-Jazeeri and accord him
an enforceable right to an effective remedy, including reparations, in accordance with
article 8 of the Universal Declaration of Human Rights and article 9 (5) of the Covenant.
30.
The Working Group urges the Government to respect the right to a fair trial and to
cease the use of arbitrary detention to suppress the peaceful exercise of the rights to
freedom of opinion and expression, and to peaceful assembly and association. To that end,
the Working Group suggests that the Government extend an invitation to the Working
Group for a country visit.
31.
In accordance with article 33 (a) of its methods of work, the Working Group refers
Mr. al-Jazeeri’s case to the Special Rapporteur on the promotion and protection of the right
to freedom of opinion and expression, the Special Rapporteur on the independence of
judges and lawyers and the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, for appropriate action.
Follow-up procedure
32.
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-Jazeeri has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. al-Jazeeri;
(c)
Whether an investigation has been conducted into the violation of Mr. al-
Jazeeri’s rights and, if so, the outcome of the investigation;
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(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.
33.
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.
34.
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 of progress made in
implementing its recommendations, as well as any failure to take action.
35.
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.5
[Adopted on 24 November 2016]
5 See Human Rights Council resolution 33/30, paras. 3 and 7.