Opinion; Subjects: AFGHANISTAN, UNITED STATES, 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.17-00921(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. 56/2016 concerning Abdul Fatah and Sa’id Jamaluddin
(Afghanistan and United States of America)
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 20 June 2016 the
Working Group transmitted a communication to the Governments of Afghanistan and of
the United States of America concerning Abdul Fatah and Sa’id Jamaluddin. The
Government of Afghanistan has not replied to the communication while the Government of
the United States replied to it on 13 September 2016. Both States are parties 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
23 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.
Mr. Fatah and Mr. Jamaluddin are biological brothers and nationals of Tajikistan.
They were both born in Dushanbe, Mr. Fatah on 1 January 1982 and Mr. Jamaluddin on 5
April 1990. Mr. Fatah is married and has four children. His family still resides in Tajikistan.
5.
Mr. Fatah and Mr. Jamaluddin are devout practicing Muslims. In around 2007 Mr.
Fatah escorted Mr. Jamaluddin to a religious school in Mashhad, Islamic Republic of Iran,
to study the Koran. The brothers travelled together through northern Afghanistan and Mr.
Fatah safely delivered Mr. Jamaluddin to the school. Mr. Fatah then went back to
Tajikistan, while Mr. Jamaluddin stayed in the Islamic Republic of Iran to study for two
years.
6.
The source informs the Working Group that after the two years had lapsed, Iranian
authorities arrested Mr. Jamaluddin for having overstayed his visa and deported him to
Afghanistan. Finding himself in Kabul with no housing or support, Mr. Jamaluddin called
Mr. Fatah to ask for assistance. Mr. Fatah joined his brother in Afghanistan, where he found
temporary lodging with a friend in Kunduz Province. Shortly thereafter, United States
forces raided the house in which the two brothers were staying. Upon discovering that
neither of them had a valid residence permit or a visa to stay in Afghanistan, the United
States forces detained the two brothers at Bagram Theatre Internment Facility.
7.
The United States authorities held Mr. Fatah and Mr. Jamaluddin at Bagram Theatre
Internment Facility from March 2009 to December 2014. During interrogations, it allegedly
became clear that the authorities had mistaken Mr. Jamaluddin and Mr. Fatah for other
men. The brothers were repeatedly interrogated as to the whereabouts of high-level figures
belonging to the Al-Qaida network. The source reports that Mr. Fatah and Mr. Jamaluddin
were never given an explanation for their detention, were held incommunicado and were
not granted access to a legal counsel. At one point, the prison guards allegedly admitted to
Mr. Jamaluddin that his detention seemed to be the result of a case of mistaken identity.
8.
After months of questioning, the United States authorities have allegedly not found
any grounds for charges. In February 2010, the detainee review board — a United States
military panel responsible for the periodic review of all detainees held at Bagram Theatre
Internment Facility — determined that the detention of the two men was no longer
warranted. However, despite the consecutive sessions of the detainee review board
affirming the decision to release Mr. Fatah and Mr. Jamaluddin, the authorities continued to
hold them until late 2014.
9.
In December 2014, the United States authorities transferred Mr. Fatah and Mr.
Jamaluddin to Afghan custody at the Afghan National Detention Facility. On 25 February
2015, the Afghan court of first instance tried the brothers on charges of failing to provide
proper documentation to enter Afghanistan and sentenced them to three years of
imprisonment. However, in the light of the fact that the brothers had already served five
years in the custody of the United States at Bagram Theatre Internment Facility, the court
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ordered their release. On 17 May 2015, an Afghan appeals court upheld that ruling. Finally,
on 19 December 2015, the Afghan Supreme Court affirmed the ruling again and ordered the
immediate release of the brothers. The source informs the Working Group that despite
those rulings Mr. Fatah and Mr. Jamaluddin continue to be held at the Afghan National
Detention Facility.
10.
The source reports that the situation for non-Afghan prisoners at the Afghan
National Detention Facility is deteriorating. On at least one occasion, the guards have
allegedly removed non-Afghans from their cells without any grounds and beaten them. Mr.
Fatah and Mr. Jamaluddin were spared on that occasion. The source adds that one of the
non-Afghan prisoners was injected with a substance that caused him to faint. The source
concludes that such events indicate that Mr. Fatah and Mr. Jamaluddin face a significant
risk of being subjected to physical abuse by the officials at the Facility.
11.
According to the information received, Mr. Fatah suffers from kidney disease, which
has worsened owing to the lack of medical care, poor nutrition and the heat at the prison.
The source claims that, in recent months, the brothers’ uncertain fate has taken an
enormous toll on their well-being. In January 2016, Mr. Fatah and Mr. Jamaluddin started a
hunger strike to protest their continued imprisonment and mistreatment at the Afghan
National Detention Facility. The hunger strike lasted nearly two weeks and ended when the
prison authorities promised to improve their conditions of confinement until they could be
resettled to a third country. However, shortly afterwards, the prison authorities transferred
them to a cell block housing death row inmates and violent convicted prisoners. There, the
brothers currently face daily threats from other prisoners; the prison guards have allegedly
indicated that they would not protect them from such threats.
12.
In addition, the prison authorities are currently denying Mr. Fatah and Mr.
Jamaluddin adequate food and clothing as a form of a collective punishment. The
authorities allegedly routinely cut food rations when anyone in the cell block violates the
prison rules. Mr. Jamaluddin and Mr. Fatah are neither provided with adequate shoes and
clothing, nor are they permitted access to proper laundry or hygiene facilities. Despite their
repeated requests, they have had no access to medical care or treatment. Their health is
rapidly deteriorating and they face a substantial risk of physical harm in their current
environment.
13.
Mr. Fatah and Mr. Jamaluddin are extremely fearful of being repatriated to
Tajikistan since they formally renounced their Tajik citizenship in December 2015, which
has rendered them officially stateless. Because there are “substantial grounds for believing”
that the brothers face a risk of torture in Tajikistan, repatriating them would violate the non-
refoulement obligations of Afghanistan.
14.
The source states that the brothers have been specifically targeted for persecution by
the Government of Tajikistan because of their association with their father, Amriddin
Tabarov. Mr. Tabarov is a former political activist who has been accused of being a
member of the Islamic Movement of Uzbekistan and of Jamaat Ansarullah, allegedly an
extremist group. The source expresses concern that, in its quest to obtain further
information about Mr. Tabarov, the Government of Tajikistan will subject Mr. Fatah and
Mr. Jamaluddin to harsh interrogation techniques that may result in death. It is alleged that
Tajik intelligence officials have threatened the brothers during numerous visits carried out
in the course of their detention, beginning in 2011 and as recently as October 2015. They
have attempted to persuade the Afghan authorities to repatriate Mr. Fatah and Mr.
Jamaluddin. The source notes that the actions of the Government of Tajikistan, including
prison visits and threats to Mr. Fatah and Mr. Jamaluddin, as well as the efforts to
encourage the Government of Afghanistan to repatriate them, show the continued interest
of the Tajik authorities in the individuals concerned. The source concludes that repatriating
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Mr. Fatah and Mr. Jamaluddin to Tajikistan would virtually guarantee that they would be
subject to abuse, which could result in their deaths.
Submissions regarding arbitrary detention
15.
The source submits that the continued detention of Mr. Fatah and Mr. Jamaluddin
constitutes the arbitrary deprivation of their liberty under categories I, III and V.
16.
In relation to category I, the source notes that the Government of Afghanistan cannot
invoke any legal basis for justifying their deprivation of liberty. The highest court of
Afghanistan has ordered Mr. Fatah and Mr. Jamaluddin to be released from detention, yet
the brothers remain at the Afghan National Detention Facility. The lack of domestic
justification for the two men’s detention renders that detention unlawful under international
law.
17.
The source also asserts that Mr. Fatah’s and Mr. Jamaluddin’s detention is arbitrary
because it is both indefinite and prolonged. It is indefinite because Mr. Fatah and Mr.
Jamaluddin are not serving a criminal sentence and the Government of Afghanistan has
allegedly given no justification for their continued detention or any indication of when they
will be released. Their detention is prolonged because it is excessive in duration, as Mr.
Fatah and Mr. Jamaluddin have been detained in Afghanistan for seven years, including
nearly six years under United States custody, with no charge or trial. Mr. Fatah and Mr.
Jamaluddin have spent over one year under the custody of the Afghan authorities. The
source observes that, although confinement is justifiable while a detainee is awaiting trial,
Afghanistan has become obliged to promptly release Mr. Fatah and Mr. Jamaluddin
following their sentence and release order. The failure of Afghanistan to comply with the
judicial order constitutes prolonged detention under these circumstances and renders the
brothers’ detention arbitrary.
18.
The source adds that Mr. Fatah’s and Mr. Jamaluddin’s detention is arbitrary under
category I because their detention serves no legitimate purpose. They are not awaiting trial,
nor are they currently serving a criminal sentence. Furthermore, they are being denied
access to the courts and to legal counsel to challenge their continued detention.
19.
It is further alleged that, to the extent that Afghanistan might claim authority to
administratively detain Mr. Fatah and Mr. Jamaluddin pursuant to its security powers, that
claim would be at odds with both international humanitarian law and human rights law.
Under international human rights law, States engaging in administrative detention bear the
burden of proving the existence of the most exceptional circumstances, in other words that
a present, direct and imperative threat exists that cannot be addressed through alternative
measures. The source observes that Mr. Fatah and Mr. Jamaluddin do not present such
exceptional circumstances because they have already been tried, sentenced to time already
served and ordered for release under the Afghan criminal system. Furthermore, during the
seven years of their detention in Afghanistan, the United States and Afghan authorities have
allegedly failed to produce evidence that Mr. Fatah and Mr. Jamaluddin pose a danger to
security. The criminal charges brought against them were only for their unlawful presence
in Afghanistan. Therefore, the source concludes that they do not pose an imperative threat
and that their administrative detention, or any detention at all, is not justified.
20.
The source observes that the non-refoulement obligations of Afghanistan cannot
justify Mr. Fatah’s and Mr. Jamaluddin’s continued detention in Afghanistan. Their
statelessness and the related non-refoulement concerns pose an obstacle to resettlement, but
that obstacle cannot justify their continued detention in Afghanistan. The source notes that
although Afghanistan is not a party to the Convention relating to the Status of Stateless
Persons, the status of a stateless person under national law must also reflect applicable
provisions of international human rights law. Their stateless status does not justify their
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continued detention by the Government of Afghanistan. Moreover, the Human Rights
Committee has stated that the inability of a State to carry out the expulsion of an individual
because of statelessness or other obstacles does not justify indefinite detention.1
21.
The source further submits that Mr. Fatah’s and Mr. Jamaluddin’s detention is
arbitrary under category III, as the Government of Afghanistan has allegedly denied them a
judicial review of their continued detention and meaningful access to or communication
with independent counsel to challenge their continued detention. It has also failed to inform
them of the basis for their continued detention following the Afghan courts’ rulings.
22.
With regard to the above-mentioned allegations, it is noted that no court has
reviewed the continued detention of Mr. Fatah and Mr. Jamaluddin following the final
ruling from the Supreme Court in December 2015. Their inability to obtain judicial review
prevents them from challenging their detention in a fair trial. The Government of
Afghanistan has failed to provide Mr. Fatah and Mr. Jamaluddin with a justification for
their continued detention following the Afghan courts’ rulings, contrary to article 9 (2) of
the Covenant, which Afghanistan ratified on 24 January 1983. Mr. Fatah and Mr.
Jamaluddin therefore cannot meaningfully challenge their detention without knowing the
reason why they have been detained or, indeed, if there is any reason. The source concludes
that, individually or combined, these procedural deficiencies constitute significant non-
observance of the international norms relating to the right to a fair trial.
23.
With regard to category V, the source notes that the foreign status of Mr. Fatah and
Mr. Jamaluddin cannot justify the harsh treatment they have endured under Afghan custody
as detainees in a maximum security section. It is submitted that the treatment endured by
Mr. Fatah and Mr. Jamaluddin, insofar as it depends on their nationality or lack thereof,
constitutes unlawful discrimination and is itself a basis for declaring their detention
arbitrary under category V.
Response from the Government of Afghanistan
24.
On 20 June 2016, the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure. The Working Group
requested the Government to provide detailed information by 19 August 2016 about the
situation of Mr. Fatah and Mr. Jamaluddin, as well as any comments about the source’s
allegations. The Working Group also requested the Government to clarify the factual and
legal grounds invoked by the authorities to justify the continued detention of the two
individuals and to provide details regarding the conformity of their deprivation of liberty
and apparent lack of fair judicial proceedings with domestic legislation and international
human rights norms, including those that constitute legal obligations for Afghanistan under
the human rights treaties it has ratified.
25.
The Working Group regrets that it did not receive a response from the Government,
which did not request an extension of the time limit for its reply, a possibility provided for
in the Working Group’s methods of work.
Response from the Government of the United States
26.
On 20 June 2016, the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure. The Working Group
requested the Government to provide detailed information by 19 August 2016 about the
factual and legal grounds invoked by the authorities to justify the detention of Mr. Fatah
and Mr. Jamaluddin at Bagram Theatre Internment Facility from March 2009 to December
1 See general comment No. 35 (2014) on liberty and security of person, para. 18.
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2014 and to provide details regarding the conformity of their deprivation of liberty and
apparent lack of fair judicial proceedings with international human rights norms.
27.
On 5 August 2016, the Government replied with a request to extend the time limit
for its reply, which was granted by the Working Group; on 13 September 2016, the
Government submitted a reply. In its reply, the Government stated that the two individuals
in question were lawfully detained by the United States under the Authorization for Use of
Military Force (United States Public Law 107-40), as informed by international
humanitarian law, in the ongoing armed conflict. The Government argues that international
humanitarian law constitutes lex specialis vis-à-vis human rights law in situations of armed
conflict and, as such, is the controlling body of law with regard to the conduct of hostilities
and the protection of victims of war.
28.
The Government further submitted that, at the end of 2014, the United States
transferred the remaining third-country national detainees who were being held in its
custody in Afghanistan. The Government explained that its policy on humane transfers was
based on the consideration of all relevant facts and circumstances concerning each
individual to determine an appropriate course of action, which includes refraining from
transferring an individual to any country where he or she is more likely than not to face
torture. The Government argued that the decision to transfer Mr. Fatah and Mr. Jamaluddin
to Afghan custody was considered the best available option under the circumstances but did
not furnish any further details concerning that decision.
29.
While referring the Working Group to the Government of Afghanistan for any
further questions relating to Mr. Fatah and Mr. Jamaluddin, the Government of the United
States also stated that it continued to engage with the Government of Afghanistan regarding
the welfare of Mr. Fatah and Mr. Jamaluddin and continued to urge the Government of
Afghanistan to uphold its obligations with regard to ensuring humane treatment. The
Government of the United States also stated that it continued to discuss with the
Government of Afghanistan options regarding the detainees’ long-term disposition, taking
into account the domestic laws and international legal obligations of Afghanistan.
Comments from the source to the response of the Government of the United States
30.
On 29 September 2016, the Working Group transmitted the reply received from the
Government of the United States to the source and requested a reply by 1 November 2016.
31.
On 8 November 2016, the source submitted its reply to the information provided by
the Government of the United States. That reply was received by the Working Group on 16
November 2016.
32.
In its response, the source rebuts the argument by the Government of the United
States that the Working Group’s mandate should not extend to Mr. Fatah and Mr.
Jamaluddin because international humanitarian law constitutes lex specialis and is thus the
controlling body of law in the present case. The source refers to a previous opinion of the
Working Group, in which it noted that the application of international humanitarian law to
an international or non-international armed conflict does not exclude the application of
human rights law. The two bodies of law are complimentary and not mutually exclusive.2
33.
The source further argues that the invocation of international humanitarian law is
especially inappropriate given the circumstances of the present case and since the United
States transferred Mr. Jamaluddin and Mr. Fatah to Afghan civilian custody for criminal
prosecution. The two men were sentenced under normal criminal proceedings, served their
time and are now entitled to release.
2 See Opinion No. 44/2005 (Iraq and the United States of America), para. 13.
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34.
The source also rebuts the argument by the Government of the United States that it
continues to engage with the Government of Afghanistan regarding the welfare of Mr.
Fatah and Mr. Jamaluddin. While noting that such efforts are welcome, the source submits
that they have not produced any concrete results for the two individuals concerned. The
source contends that, having been detained for years under United States custody at Bagram
Theatre Internment Facility, Mr. Jamaluddin and Mr. Fatah carry the stigma of having been
suspected as terrorists by the United States. According to the source, it is that stigma that
keeps them in indefinite detention. The source notes that the Government of Afghanistan
lacks the financial resources to provide Mr. Fatah and Mr. Jamaluddin with humane living
conditions. Noting also the lack of political capital held by the Government of Afghanistan
to find them a third country where they could be resettled, the source points out that over
the years the United States has successfully resettled hundreds of individuals detained as
Guantanamo. The source therefore argues that support from the Government of the United
States could finally bring an end to the arbitrary detention of Mr. Jamaluddin and Mr.
Fatah.
35.
The source therefore requests the Working Group to recommend that the
Government of United States engage with the Government of Afghanistan with a view to
providing it with support in seeking a safe third country for resettlement. In order to protect
Mr. Jamaluddin and Mr. Fatah from non-refoulement violations, the source asks the
Working Group to work closely with the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment to oversee the resettlement of Mr.
Jamaluddin and Mr. Fatah to a safe third country. Lastly, it asks the Working Group to find
that the prolonged and indefinite detention of Mr. Jamaluddin and Mr. Fatah is arbitrary
under categories I and III and to recommend both meaningful access to counsel and
immediate release from Afghan custody.
Discussion
In relation to the United States
36.
The Working Group recalls that, in accordance with paragraph 17 (a) of its methods
of work, it may render an opinion on whether the deprivation of liberty has been arbitrary
notwithstanding the release of the person concerned. In the present case, the Working
Group will deliver its opinion on the detention of Mr. Fatah and Mr. Jamaluddin by the
United States notwithstanding the fact that the United States handed over the individuals
concerned to the Afghan authorities, as their detention has continued since the handover.
37.
The source alleges that Mr. Fatah and Mr. Jamaluddin were initially detained by the
United States forces following a raid of their residence during which it was established that
neither had a valid residence permit or a visa to stay in Afghanistan. The brothers were then
held by the United States authorities at Bagram Theatre Internment Facility from March
2009 to December 2014. The source alleges that, during interrogations, it became clear that
the authorities had mistaken Mr. Jamaluddin and Mr. Fatah for other men, a fact that was
also allegedly admitted by the prison guards. The source informs the Working Group that
Mr. Fatah and Mr. Jamaluddin were never given an explanation for their detention, were
held incommunicado and were not granted access to a legal counsel. In February 2010, the
detainee review board at the Facility determined that their detention was no longer
warranted. However, despite the consecutive sessions of the detainee review board
affirming the decision to release Mr. Fatah and Mr. Jamaluddin, the authorities continued to
hold them until late 2014.
38.
The Working Group reiterates that, in accordance with its deliberation No. 9
concerning the definition and scope of arbitrary deprivation of liberty under customary
international law, the prohibition of arbitrary detention is part of customary law and, in fact,
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constitutes a jus cogens norm.3 That means that no derogations on behalf of States are
permissible and no exceptional circumstances, be they a state of emergency or an armed
conflict, may be invoked to justify restrictions to an individual’s liberty through arbitrary
detention.
39.
The Working Group also wishes to recall the concluding observations of the Human
Rights Committee on the fourth periodic report of the United States, in which the
Committee stated that the United States should end the system of administrative detention
without charge or trial and ensure that any criminal cases against detainees held in
Guantanamo and in military facilities in Afghanistan are dealt with through the criminal
justice system rather than military commissions, and that those detainees are afforded the
fair trial guarantees enshrined in article 14 of the Covenant.4
40.
The Working Group notes that the Government of the United States, in its reply to
the allegations, only stated that the two individuals in question were lawfully detained by
the United States under the Authorization for Use of Military Force (United States Public
Law 107-40). This domestic legislation, referred to by the Government as a basis for
detention in the present case, is a general law that gives the power of military operations to
the President of the United States. It cannot be considered as a ground for the detention of
anyone without cause. In the present case, and in its response, the Government of the
United States has failed to provide the grounds for the arrest and the detention.
41.
Moreover, the Government of the United States did not address the submission
made by the source that in February 2010 the detainee review board determined that the
detention of Mr. Fatah and Mr. Jamaluddin was no longer warranted. The Working Group
therefore concludes that the Government is not disputing the submission that the board
ordered the release of Mr. Fatah and Mr. Jamaluddin and that, as of the date of the review
by the board ordering the release of Mr. Fatah and Mr. Jamaluddin, the continued detention
of those two individuals by the United States authorities had no legal basis and was
contrary to article 9 of the Covenant. It therefore constitutes arbitrary detention falling
within category I.
42.
As the Human Rights Committee has stated in paragraph 24 of its general comment
No. 35 (2014) on liberty and security of person, article 9 (2) of the Covenant imposes two
requirements for the benefit of persons who are deprived of liberty. First, they shall be
informed, at the time of arrest, of the reasons for the arrest. Secondly, they shall be
promptly informed of any charges against them. In the case of Mr. Fatah’s and Mr.
Jamaluddin’s detention by the United States authorities, both elements of article 9 (2) have
been violated. Furthermore, the right under article 9 of the Covenant to be brought before a
judge so as to determine the legality of the detention has been violated.
43.
The Working Group is particularly alarmed by the source’s allegation that Mr. Fatah
and Mr. Jamaluddin have been held incommunicado. As the Human Rights Committee
notes in paragraph 35 of its general comment No. 35, incommunicado detention that
prevents prompt presentation before a judge inherently violates article 9 (3).5 It is thus clear
that, by holding Mr. Fatah and Mr. Jamaluddin incommunicado, the United States has
violated their rights under article 9 (3) of the Covenant.
44.
Consequently, the detention of Mr. Fatah and Mr. Jamaluddin in the custody of the
United States from May 2010 to December 2014 was arbitrary and falls within category III.
3 See A/HRC/22/44, para. 51.
4 See CCPR/C/USA/CO/4, para. 21.
5 See communication No. 1297/2004, Medjnoune v. Algeria, Views adopted on 14 July 2006, para. 8.7.
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In relation to Afghanistan
45.
In the absence of a response from the Government of Afghanistan, the Working
Group has decided to render the present opinion, in conformity with paragraph 15 of its
methods of work.
46.
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.6 In the present
case, the Government has chosen not to challenge the prima facie credible allegations made
by the source.
47.
The Working Group, in its deliberation No. 9 concerning the definition and scope of
arbitrary deprivation of liberty under customary international law, has unequivocally stated
that the prohibition of arbitrary detention in international human rights law is part of
customary international law and, in fact, constitutes a jus cogens norm. That means that no
derogations on behalf of States are permissible and no exceptional circumstances, be they a
state of emergency or an armed conflict, may be invoked to justify restrictions to an
individual’s liberty through arbitrary detention. As the Working Group has stated, a State
can never claim that illegal unjust or unpredictable deprivation of liberty is necessary for
the protection of a vital interest or proportionate to that end.7
48.
Equally, in its deliberation No. 9 concerning the definition and scope of arbitrary
deprivation of liberty under customary international law, the Working Group recognized
the right to bring proceedings before a court in order to challenge the legality of the
detention as a non-derogable right.8 The Working Group has further confirmed as much in
its Basic Principles and Guidelines on Remedies and Procedures on the Rights of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, in which it states that the
right to challenge the lawfulness of detention is a self-standing human right and a judicial
remedy that is essential to preserve legality in a democratic society.9
49.
The position of the Working Group is in full conformity with that of the Human
Rights Committee which, in its general comment No. 35 stresses that the right to review by
a court of the legality of detention applies to all persons deprived of liberty. In the same
general comment, the Committee adds that the unauthorized confinement of prisoners
beyond the length of their sentences is arbitrary as well as unlawful (paras. 4 and 11).
50.
In the present case, Mr. Fatah and Mr. Jamaluddin exercised their right to challenge
the legality of their detention before a court. On 25 February 2015, the Afghan court of first
instance tried the brothers on charges of failing to provide proper documentation to enter
Afghanistan and sentenced them to three years of imprisonment. However, in the light of
the fact that the brothers had already served five years in United States custody at Bagram
Theatre Internment Facility, the court ordered their release. On 17 May 2015, an Afghan
appeals court upheld that ruling. Finally, on 19 December 2015, the Afghan Supreme Court
affirmed the ruling again and ordered the immediate release of the brothers. The source
informs the Working Group that, despite those rulings, Mr. Fatah and Mr. Jamaluddin
continue to be held at the Afghan National Detention Facility. The Government of
Afghanistan has not rebutted the allegations, which means that, while the initial detention
of Mr. Fatah and Mr. Jamaluddin by the Afghan authorities could have been justified due to
6 See A/HRC/19/57, para. 68.
7 See A/HRC/22/44, para. 48.
8 Ibid., para. 49.
9 See A/HRC/30/37, para. 3.
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a breach of immigration laws, as of the date of the coming into legal force of the decision of
the appellate court the continued detention of Mr. Fatah and Mr. Jamaluddin no longer has
any legal basis. It is contrary to article 9 of the Covenant and therefore constitutes arbitrary
detention falling within category I.
51.
The Working Group further notes numerous violations of Mr. Fatah’s and Mr.
Jamaluddin’s rights after the final determination of the case concerning their irregular
immigration status. The rights of Mr. Fatah and Mr. Jamaluddin under article 14 (3) (b) and
(d) of the Covenant have been violated since they were denied any legal representation for
the purpose of challenging their continued detention since the appellate court ordered their
release. As the Human Rights Committee has stated in paragraph 10 of its general comment
No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, the
availability or absence of legal assistance often determines whether or not a person can
access the relevant proceedings or participate in them in a meaningful way.
52.
Moreover, the Working Group also notes that Mr. Fatah and Mr. Jamaluddin have
not been provided with any reason for their continued detention since the appellate court
ordered their release. That is not only a violation of article 9 (2) of the Covenant, it also
renders the two men’s right to challenge their continued detention before a court entirely
ineffective. Without knowing the charges against them or the reasons for their continued
detention, Mr. Fatah and Mr. Jamaluddin are unable to challenge their detention. That
serious breach of a non-derogable right, coupled with the denial of access to legal counsel,
renders the continued detention of Mr. Fatah and Mr. Jamaluddin arbitrary under category
III.
53.
The Working Group wishes to express its grave concern about Mr. Fatah’s
deteriorating health since his detention in 2014 by the Afghan authorities. The Working
Group refers, in particular, to the allegations made by the source that Mr. Fatah suffers
from kidney disease and that his condition has deteriorated owing to the lack of medical
care, poor nutrition and the heat at the prison. Moreover, the source reports that Mr. Fatah
and Mr. Jamaluddin went on a hunger strike for two weeks in January 2016 to protest their
continued detention. The Working Group considers that such treatment violates Mr. Fatah’s
and Mr. Jamaluddin’s rights under article 10 (1) of the Covenant to be treated with
humanity and respect for their inherent dignity, and falls significantly short of the
requirements of the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules).10
54.
Finally, the source claims that the harsh treatment that Mr. Fatah and Mr.
Jamaluddin have endured while under Afghan custody is due to their status as foreign
nationals. The source argues that Mr. Fatah and Mr. Jamaluddin have been discriminated
against on the basis of their nationality. The Working Group is unable to establish with the
requisite degree of certainty that the facts presented by the source disclose a particular
targeting of Mr. Fatah and Mr. Jamaluddin on the basis of nationality and concludes that the
facts presented by the source are insufficient to substantiate such an allegation. The
Working Group therefore is of the opinion that the continued detention of Mr. Fatah and
Mr. Jamaluddin does not fall under category V.
Non-refoulement
55.
The source has also submitted that the ultimate release of Mr. Fatah and Mr.
Jamaluddin by the Afghan authorities must take into account the prohibition of non-
10 See General Assembly resolution 70/175 and, in particular, rules 1, 11-13, 15-16, 21-22, 24-27, 30-
33 and 35.
A/HRC/WGAD/2016/56
11
refoulement and noted that the United States too cannot absolve itself of responsibility in
the matter. Neither of the two Governments have addressed the issue.
56.
The Working Group notes the credible allegations made by the source regarding the
obligation of non-refoulement on the basis of the Tajik nationality of the two brothers, a
nationality which they revoked for fear of being returned to Tajikistan. The source has
stated that the brothers have been specifically targeted for persecution by the Government
of Tajikistan because of their association with their father, Mr. Tabarov, a former political
activist. The source has expressed concern that, in its quest to obtain further information
about Mr. Tabarov, the Government of Tajikistan will subject Mr. Fatah and Mr.
Jamaluddin to harsh interrogation techniques that may result in death. It is alleged that
Tajik intelligence officials have threatened the brothers during numerous visits over the
course of their detention, beginning in 2011 and as recently as October 2015. It is also
alleged that Tajik intelligence officials have attempted to persuade the Afghan authorities to
repatriate Mr. Fatah and Mr. Jamaluddin.
57.
The Working Group reiterates the position it adopted in its legal opinion on
preventing arbitrary detention in the context of international transfer of detainees,
particularly in countering terrorism, on the need for Governments to include the risk of
arbitrary detention in the receiving State per se among the elements to be taken into
consideration when asked to extradite, deport, expel or otherwise hand a person over to the
authorities of another State.11
58.
Accordingly, the removal of a person to a State where there is a genuine risk that the
person will be detained without legal basis, or without charges over a prolonged time, or
that the person will be tried before a court that manifestly follows orders from the executive
branch, cannot be considered compatible with the obligation in article 2 of the Covenant,
which requires that States parties respect and ensure the Covenant rights for all persons in
their territory and under their control.12
59.
In relation to the Government of the United States, the Working Group wishes to
recall the above-mentioned concluding observations of the Human Rights Committee, in
which the Committee stated that the State party should strictly apply the absolute
prohibition against refoulement under articles 6 and 7 of the Covenant.13 Similarly, the
Committee against Torture, in its concluding observations on the combined third to fifth
periodic reports of the United States, called upon the State party to ensure that no
individual, including persons suspected of terrorism, who is expelled, returned, extradited
or deported, is exposed to the danger of torture or other cruel, inhuman or degrading
treatment or punishment.14
60.
The Working Group urges the Government of Afghanistan and the Government of
the United States to comply with their obligations concerning non-refoulement. The
Working Group also notes the allegations of torture and ill-treatment made by the source,
which have not been rebutted by either Government. The Working Group therefore refers
the case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment.
11 See A/HRC/4/40, para. 49.
12 Ibid.
13 See CCPR/C/USA/CO/4, para. 13.
14 See CAT/C/USA/CO/3-5, para. 16.
A/HRC/WGAD/2016/56
12
Disposition
61.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Abdul Fatah and Sa’id Jamaluddin by the Afghan and
United States authorities being in contravention of articles 2, 3 and 10 of the
Universal Declaration of Human Rights and of articles 9 and 14 of the International
Covenant on Civil and Political Rights, is arbitrary and falls within categories I and
III.
62.
The Working Group requests the two Governments jointly to take the steps
necessary to remedy the situation of Mr. Fatah and Mr. Jamaluddin without any further
delay and bring it in conformity with their international obligations under the Universal
Declaration of Human Rights and the Covenant.
63.
Taking into account all the circumstances of the case, the Working Group considers
that the adequate remedy would be to immediately release Mr. Fatah and Mr. Jamaluddin
and to accord to them an enforceable right to compensation in accordance with article 9 (5)
of the Covenant. The Working Group reminds both Governments to abide by their
obligations concerning non-refoulement in relation to Mr. Fatah and Mr. Jamaluddin.
64.
Finally, the Working Group considers it necessary and appropriate to refer the
present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment for appropriate measures in relation to the allegations of torture.
Follow-up procedure
65.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the two Governments concerned to provide it with information on
action taken in follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Fatah and Mr. Jamaluddin have been released and, if so, on
what date;
(b)
Whether compensation or other reparations have been made to Mr. Fatah and
Mr. Jamaluddin;
(c)
Whether an investigation has been conducted into the violation of Mr.
Fatah’s and Mr. Jamaluddin’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 two Governments with their international
obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
66.
The two Governments are invited to inform the Working Group of any difficulties
they may have encountered in implementing the recommendations made in the present
opinion and whether further technical assistance is required, for example, through visits by
the Working Group.
67.
The Working Group requests the source and the two Governments 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.
A/HRC/WGAD/2016/56
13
68.
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.15
[Adopted on 24 November 2016]
15 See Human Rights Council resolution 24/7, paras. 3 and 7.