Opinion; Subjects: MALDIVES, 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.17-01509(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. 59/2016 concerning Mohamed Nazim (Maldives)
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 21 June 2016 the
Working Group transmitted a communication to the Government of Maldives concerning
Mohamed Nazim. The Government replied to the communication on 20 September 2016.
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);
United Nations
A/HRC/WGAD/2016/59
General Assembly
Distr.: General
1 February 2017
Original: English
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(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.
Mohamed Nazim is the former Minister for Defence and National Security of
Maldives and a well-known political figure in the country. He first became the Minister for
Defence on 8 February 2012 under the presidency of Mohammed Waheed Hassan. He was
reappointed to the position on 17 November 2013 by President Abdulla Yameen Abdul
Gayoom.
5.
According to the information received, on 18 January 2015 in Male’, at around 3.30
a.m., a number of masked police officers entered the apartment belonging to Mr. Nazim’s
wife. The source indicates that the officers went to the bedroom, forced Mr. Nazim to kneel
down at gunpoint and later took him and his spouse to the sitting room, ordering them to
stay there. The officers then brought their son and daughter to the sitting room and stayed
with the family so that they would not leave the sitting room. The rest of the police
contingent stayed in the bedroom for around 10 minutes. Mr. Nazim and his family could
hear activity in the bedroom but could not see what the officers were doing there as they
were not allowed to move.
6.
The source indicates that after a while, some masked officers left and more officers
in plain clothes together with some forensic officers entered the apartment without
identifying themselves. However, Mr. Nazim agreed to let them carry out a search after
they showed him a relevant warrant. Allegedly, officers went directly to a drawer in a side
table at the far end of the bedroom, opened it and took out a black bag. They asked if the
bag belonged to Mr. Nazim. He said that it did not and called his wife to ask her whether it
was hers, and she denied it too. The officers then opened the bag and took out a pistol, three
bullets and a magazine. More than a week later, the police publicly announced that they had
found two other items, an explosive device and a pen drive, in the same bag. The State
prosecution later asserted that the police had informed it that the pen drive contained
documents outlining plans to physically harm “senior honourable State officials”.
7.
Mr. Nazim has consistently stated that those items were planted in the apartment by
the police with the connivance of the authorities. It is alleged that the circumstances
surrounding the police action appear to give weight to his allegation. The search warrant
issued by the Court was meant to search the entire building, but only Mr. Nazim’s wife’s
apartment was actually searched. Furthermore, the allegedly incriminating items were
found by the police without following the proper procedures as required under the
regulations of the Maldives Police, such as video recording the search and providing the list
of items being taken away from the premises.
8.
Mr. Nazim was accused of “bringing weapons into Maldives and possessing
weapons” under Act No. 4/75 on Prohibited Imports. His legal counsel argues that the 1975
law is outdated and that the prosecution should instead have used Act No. 17/2010
Prohibiting Threatening Behaviour and Possession of Dangerous Weapons and Sharp
Objects, which places a higher burden of proof on the police for bringing charges.
9.
Mr. Nazim was initially charged under section 13 (a) of Act No. 4/75 on Prohibited
Imports, read in reference to section 2 (a). However, judges also made reference to other
sections of the Act under which Mr. Nazim had not been charged. After the charges were
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presented, the trial court gave the defence team three days to prepare. Following a request
from Mr. Nazim’s defence for more time to prepare, the Court granted two additional days.
The source claims that the time given to the defence team was not sufficient, given the
serious nature of the charges.
10.
The source indicates that some of the documents provided to the court by the
prosecution and used as evidence at the trial were withheld from the defence. The court and
the prosecution did not reveal to the defence team the exact number of documents that had
been submitted to the court. Those given to the defence team were numbered from 27 to 51,
suggesting that at least 26 documents may have been withheld. In response to a query from
the defence about the missing documents, the court authorities said the other documents
were “secret” and would not be disclosed to the defence.
11.
The source claims that during the trial, the prosecution did not prove beyond
reasonable doubt that the weapon had belonged to Mr. Nazim. In particular, the fingerprint
evidence report compiled by the Maldives Police Service, dated 20 January 2015, was
allegedly not submitted to the court by the prosecution. Furthermore, the report was not
given sufficient weight by the judges when it was presented to the court by the defence.
Purportedly, the report is significant because it rules out the possibility that the fingerprints
found on the items inside the black bag retrieved from Mr. Nazim’s house belonged to Mr.
Nazim or any of his family members. Furthermore, the burden of proof was put on Mr.
Nazim to demonstrate that the items did not belong to him, contravening the right to the
presumption of innocence.
12.
In addition, it is submitted that the right of the defence to present witnesses was
severely curtailed by the court. From a list of 50 witnesses submitted by Mr. Nazim’s
defence, the court allowed testimony from only 3. The right of the defence to cross-
examine witnesses presented by the prosecution was also limited; of the six prosecution
witnesses, three testified anonymously and restrictions were imposed during cross-
examination.
13.
On 26 March 2015, Mr. Nazim was sentenced to 11 years in prison. He was initially
placed in Asseyri Jail in Himmafushi, subsequently transferred to Maafushi Jail and finally
transferred back to Asseyri Jail. According to his family, Mr. Nazim is being held in
solitary confinement, under 24-hour surveillance, and the door to his cell has been blocked
so that he cannot see outside or interact with anyone except the guards.
14.
The source claims that the authorities have hindered Mr. Nazim’s right to appeal.
The appeal deadline had been set at 2 p.m. on 12 April 2015, but the defence lawyers did
not receive the documents they needed from the trial court to mount their appeal by that
time. In order not to miss the deadline, they had to mount their appeal based on their own
recollection of the judgment when it had been read out in court.
15.
The High Court had initially scheduled Mr. Nazim’s appeal for 22 June 2015.
However, the composition of the appeal bench was revised one day before that date, by the
Supreme Court under the amendments made to the Maldives Judicature Act in December
2014. Two out of the five judges hearing the appeal were transferred to the Southern
Branch of the High Court. No information was given to Mr. Nazim or his lawyers about the
status of his appeal. In mid-August 2015, Mr. Nazim’s lawyers petitioned the Supreme
Court for an order to expedite Mr. Nazim’s High Court appeal, which was not granted.
Furthermore, on 29 October 2015, the judge presiding over Mr. Nazim’s case was also
transferred to the Southern Branch of the High Court.
16.
The source claims that those transfers have brought a considerable degree of
confusion about the status of the appeal. Allegedly, the authorities did not explain to the
defence team what would happen next. As a result, Mr. Nazim’s appeal was left
unaddressed for five months until 3 December 2015, when the first hearing finally took
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place. On 31 December 2015, the High Court allowed six defence witnesses to be presented
at court, which increased the number of defence witnesses allowed to testify from three to
nine. Closing statements were heard on 5 January 2016. The source indicates that on 15
March 2016, the High Court upheld Mr. Nazim’s conviction, despite serious concerns about
the lack of a fair trial and the questions around the evidence against Mr. Nazim. Mr.
Nazim’s legal counsel has raised several concerns about the irregularities in the decision of
the High Court upholding his conviction. They include the denial of Mr. Nazim’s rights to
question some of the witnesses against him and continued inconsistencies in some witness
testimonies.
17.
On 19 May 2016, Mr. Nazim’s lawyers submitted an appeal to the Supreme Court,
which was rejected on 26 June 2016.
18.
The source indicates that there are serious concerns about Mr. Nazim’s deteriorating
health in detention. His eyesight is getting worse, he has heart problems and suffers from
varicose veins. His family has repeatedly appealed to the authorities to allow him to be seen
by a specialist. After many appeals, he was seen by a specialist who recommended medical
treatment abroad because the requisite facilities were not available in Maldives. He was
told that he had to seek the agreement of the trial court. Mr. Nazim duly petitioned the court
but the judges rejected his petition. In the meantime, his health deteriorated even further.
His family was then compelled to seek authorization directly from the Government for Mr.
Nazim’s medical treatment abroad.
19.
On 10 April 2015, the authorities agreed to allow Mr. Nazim to travel to Singapore
for treatment for a period of 45 days. After his return, he was taken back to prison. He
continued to suffer from ill-health and, when he was taken to hospital, he was prescribed
and given medication unknown to him with no explanation. Mr. Nazim’s family was not
informed about those hospital visits, making it difficult for them to know about the
diagnosis of his illness and the medication he was taking, including the doctor’s
recommendations and prescriptions. In August 2015, his family received news that the
doctors had warned Mr. Nazim that he might lose his eyesight if he did not receive further
treatment abroad.
20.
On 15 September 2015, the Government granted permission for Mr. Nazim to travel
to Singapore again for a period of seven days in order to receive more extensive urgent
treatment, although his family had requested that he be sent to either India or Malaysia,
reasoning that the treatment offered in Singapore is very expensive. On 24 March 2016, Mr.
Nazim was granted an additional three weeks of medical leave to travel to Singapore for
treatment. The doctors had advised that he have surgery for his varicose veins and a
recovery period for three weeks after the surgery. He had also been prescribed doctor-
supervised physiotherapy for a month for his back pain. In the light of those
recommendations, Mr. Nazim applied to extend his medical leave for two weeks. That
application was rejected by the Government, which ordered him to return to Maldives
immediately. The family will reapply for an extension of medical leave.
21.
The source claims that Mr. Nazim’s arrest and imprisonment are politically
motivated and stem from his political opposition to the Government. It cites several other
prominent political figures who are currently held in detention or have fled the country. It
therefore submits that Mr. Nazim’s detention constitutes arbitrary detention according to
category III. His detention violates his right to a fair trial as provided in articles 10 and 11
of the Universal Declaration of Human Rights and article 14 of the Covenant, particularly:
(a) the right to the presumption of innocence (art. 11 (1) of the Universal Declaration of
Human Rights, art. 14 (2) of the Covenant); (b) the right to a fair and public hearing (art. 10
of the Universal Declaration of Human Rights, art. 14 (1) of the Covenant); (c) the right to
adequate time and facilities to prepare a defence (art. 11 (1) of the Universal Declaration of
Human Rights, art. 14 (3) (b) of the Covenant); (d) the right to examine prosecution
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witnesses and call and examine witnesses for the defence (art. 11 (1) of the Universal
Declaration of Human Rights, art. 14 (3) (e) of the Covenant); and (e) the right to appeal
(art. 14 (5) of the Covenant).
22.
More specifically, the source lists a number of violations, namely:
(a)
The Government violated several procedural requirements from the very
beginning of the search at Mr. Nazim’s house by failing to video record the search and to
provide a list of items being taken away from the premises;
(b)
The trial court granted Mr. Nazim’s defence team a total of only five days to
prepare their defence;
(c)
The right of the defence to present and cross-examine witnesses was severely
limited;
(d)
The defence team was allowed to present only a limited amount of supporting
evidence to the trial court;
(e)
The trial court did not disclose to the defence team some 26 of the documents
the prosecution had placed before it as evidence. It was stated that those documents would
not be disclosed to the defence because of their secret nature;
(f)
The burden of proof was put on Mr. Nazim to demonstrate that the items that
were removed from the bag did not belong to him, contravening the right to the
presumption of innocence;
(g)
The prosecution did not prove beyond reasonable doubt that the weapons
found belonged to Mr. Nazim.
23.
The source claims that the authorities’ lack of sufficient attention to Mr. Nazim’s
physical health violates article 25 (1) of the Universal Declaration of Human Rights, article
10 of the Covenant and article 19 (b) of the Anti-Torture Act of Maldives, which stipulates
that the authorities must facilitate medical assistance within 24 hours of any such request by
an inmate or a detainee.
Response from the Government
24.
On 21 June 2016, the Working Group transmitted the allegations from the source to
the Government under its regular communication procedure, requesting the Government to
provide detailed information by 20 August 2016 about Mr. Nazim’s current situation and
any comment on the source’s allegations. The Working Group also requested the
Government to clarify the factual and legal grounds justifying Mr. Nazim’s continued
detention and to provide details regarding the conformity of his 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 Maldives under the human
rights treaties that it has ratified.
25.
On 16 August 2016, the Government sought an extension of the deadline to submit
its response to 6 October 2016. On 1 September 2016, the Working Group granted an
extension to 20 September 2016, in accordance with paragraph 16 of its methods of work.
26.
In its response dated 20 September 2016, the Government provided the Working
Group with the information below.
27.
The position of the Government in relation to the petition regarding Mr. Nazim is
that he has not been the victim of a politicized process, but has been properly charged and
has faced trial for a serious offence that constitutes an abuse of the high political office with
which he was entrusted. The allegations contained in the petition are either factually
incorrect or are a mischaracterization of the position; his detention is justified and is in
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accordance with domestic and international law, following his lawful conviction for serious
criminal offences. It cannot therefore be considered arbitrary.
28.
The Government states that none of the criticisms that have been levelled against the
trial process were sufficiently serious, either individually or cumulatively, to render the
entirety of the proceedings a flagrant denial of justice, which would make Mr. Nazim’s
detention arbitrary. The alleged irregularities were considered and dismissed by the
Criminal Court in the first instance, the High Court in the second instance and the Supreme
Court in the third instance. The burden of proof rests with the source to demonstrate a
complete nullification of Mr. Nazim’s rights protected under national and international law
or a flagrant denial of justice in his trial and conviction.
29.
In relation to the submission by the source, the Government notes that Mr. Nazim’s
detention was in accordance with domestic law and therefore it should be measured only
against relevant international standards. The case against Mr. Nazim is specifically related
to allegations of the individual criminal act of unlawful possession of a firearm,
ammunition and an explosive device, for which he was convicted under section 13 (a) of
Act No. 4/75 on Prohibited Imports, read in conjunction with section 2 (a). It is not related
to the exercise of his human rights to freedom of opinion and expression or to
discrimination on the basis of his political opinion or membership of any particular group.
30.
As regards the accusation that his detention is arbitrary under category III, the
Government reminds the Working Group that it has no power to assess the value of any
evidence adduced in any trial or to substitute itself for a domestic appellate tribunal, and
should not, as the source suggests, enter into any evaluation of the strength of the evidence
against Mr. Nazim.1
31.
The Government argues that it is also beyond the mandate of the Working Group to
consider the conditions in which Mr. Nazim is detained. 2 However, in relation to Mr.
Nazim’s alleged solitary confinement, the Government notes that incommunicado detention
is permitted in exceptional circumstances for “a matter of days”.3 The Government states
that it has submitted a schedule of visits that shows that adequate visitation was
subsequently permitted.
32.
As for the alleged absence of medical treatment amounting to cruel, inhuman or
degrading treatment, the Government recalls that Mr. Nazim has been permitted to travel to
Singapore on two separate occasions for medical treatment and has been afforded a total of
16 domestic medical visits, including appointments with several specialists regarding the
issues raised in his petition. In addition, he is currently under house arrest.4
33.
The Government refers to the “double threshold” that must be met in order for a
detention to be considered arbitrary under category III, namely: (a) that there has been a
1 The Government cites the Working Group’s fact sheet No. 26, which indicates that it is not for the
Group to evaluate the facts and evidence in a particular case or to substitute itself for domestic
appellate tribunals, and opinions No. 12/2007 and No. 40/2005.
2 The Government cites fact sheet No. 26, which indicates that it is not for the Group to examine
complaints about instances of detention and subsequent disappearance of individuals, about alleged
torture, or about inhuman conditions of detention, and opinions No. 41/1996, No. 7/2007, No.
28/2007 and No. 12/2007.
3 See the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, principles 15, 16 (4) and 18 (3).
4 Information contained in the submission from the Government of Maldives to the Working Group.
The Government also states, however, that Mr. Nazim’s house arrest as of 21 April 2016 was a result
of the fact that the prison was being renovated.
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violation of due process; and (b) either that the gravity of the violation warrants
nullification or that it constitutes a “flagrant denial of justice”.
34.
In relation to the allegation that the items seized during the police search of Mr.
Nazim’s wife’s apartment on 18 January 2015 and used in evidence were planted, the
Government states that the confinement of Mr. Nazim and his family during the search is
“common and good practice” to prevent disposal of evidence or interference with the search
that is “comparable to any number of other jurisdictions, including that of the United
Kingdom of Great Britain and Northern Ireland and other European States”. The
Government claims that the initial deployment of masked and armed police before the
arrival of plain-clothed officers betrays no foul intent as it was necessary to secure the
property for the safety of civilians and law enforcement officials in a case involving
possession of firearms in a residential building. The Government submits that the police
report showed that none of the items revealed any fingerprints or DNA profiles that
matched those of anyone who took part in the search. Concerning the alleged violations of
the regulations of the Maldives Police, the Government acknowledges the failure to provide
a list of seized items, which it says will be addressed internally, but informs the Working
Group that there is no requirement in the regulations or in case law for the search to be
video recorded.5
35.
The Government submits that Mr. Nazim’s legal team had enough time to prepare
the defence since the offence itself is very straightforward and the majority of the
investigation that they would have sought to undertake had in effect been done for them by
the police. In the view of the Government, there is no specific time limit that could be
considered “adequate” for criminal cases, as it generally depends on the particular
characteristics of the case, including its complexity. The Government submits that, since
the Court granted a two-day extension to the initial three-day preparation time, since Mr.
Nazim’s legal team knew of the content of the investigation and since the case was not
complex in nature, Mr. Nazim had adequate time to prepare the defence. It also contends
that Mr. Nazim failed to explain how the alleged insufficient time negatively affected his
right to a defence.
36.
The Government states that the right to present and cross-examine witnesses is
subject to limitations that seek to balance it with the need to reach a judgment without
undue delay and to conduct efficient and reasonable judicial process. In the view of the
Government, the court has inherent discretion to hear evidence that is relevant to the
proceedings, and the Criminal Court’s admission of 3 of 50 witnesses requested by Mr.
Nazim and 11 additional witnesses on appeal to the High Court, outnumbering the 4
witnesses produced by the prosecution, was not arbitrary but adequate and proportional.
The Government adds that Mr. Nazim called four more witnesses who were noted as
prosecution witnesses by the trial court as their attendance was also sought by the
prosecution. As to the court’s restriction on cross-examination of prosecution witnesses, the
Government submits that Mr. Nazim failed to show how it prejudiced his defence.
Moreover, the anonymity of three out of six prosecution witnesses was necessary and did
not impede procedural safeguards, including cross-examination. The evidence they
provided was not the sole or decisive evidence.
37.
The Government states that, of the 26 documents alleged to have been withheld
from the defence, only 15 were undisclosed, while the rest were disclosed but had personal
information redacted. The Government contends that, since the court confirmed the national
security concerns for non-disclosure and the undisclosed evidence was not decisive or
essential in establishing Mr. Nazim’s guilt, it was consistent with international standards.
5 Information contained in the submission from the Government of Maldives to the Working Group.
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38.
With regard to the presumption of innocence in determining the possession of the
items in question, the Government submits that Mr. Nazim’s efforts to adduce evidence that
he was not “in possession” of them did not shift the prosecution’s obligation to prove the
case beyond reasonable doubt. It is a matter for the court to determine whether the
circumstances amounted to the appropriate element of the offence being proven beyond all
reasonable doubt.
39.
The Government argues that the trial court did not hinder Mr. Nazim’s right to
appeal by not providing his lawyers with the necessary documents in time. The appeal
notice, which has to be filed within 10 days, is an application for permission to appeal and
not the full argument in support thereof. The Government explains that it is possible to
augment the grounds of appeal at a later stage. According to the Government, therefore, the
lack of full documentation cannot preclude the notice from being properly filed.
Furthermore, the 10-day period starts from the time the defence receives the trial record and
Mr. Nazim’s lawyers could have requested an extension of the appeal period, but failed to
do so. In any case, since the appeal court allowed Mr. Nazim’s legal team to supplement
and modify the grounds for appeal, there is no violation of the right to appeal. As for the
changes in the composition of the appeal bench in the High Court, the Government submits
that it was the result of law reforms that did not affect Mr. Nazim’s right to a fair trial and
the proceedings were completed within a reasonable time. The admission of 11 defence
witnesses against 1 prosecution witness by the High Court negates Mr. Nazim’s claim of
irregularities or inconsistencies.
40.
The Government informs the Working Group that Mr. Nazim’s appeal was rejected
by the Supreme Court on 26 June 2016. Despite the source’s allegations of political
motivation, the Government argues that there is no reason to question the independence,
impartiality and expertise of the courts involved in the case. The Government adds that the
trial court announced at the start of the proceedings that it would consider holding in
camera hearings if rumours on social media proved likely to influence the outcome.
41.
The Government asserts that the allegation of politically motivated proceedings
lacks any credible foundation and is contrary to the facts, as Mr. Nazim was one of the first
members to be appointed to the cabinet by President Yameen and was one of its most
trusted members. Therefore, the Government claims, Mr. Nazim could not have been
viewed as a threat to the presidency, or deemed to be in any way seeking to subvert it. The
Government argues that any suggestion of malign influence in the matter should be rejected
as non-sensical.
Additional comments from the source
42.
The response of the Government was sent to the source on 30 September 2016 for
comment; the source replied on 9 November 2016. The source reiterates that Mr. Nazim
has been sentenced to 11 years in prison in a grossly unfair trial that violates various
principles of the Universal Declaration of Human Rights and provisions of the Covenant
and falls under category III.
43.
The source states that Police Commissioner Hussain Waheed claimed in the press
briefing following the search of Mr. Nazim’s residence on 18 January 2015 that the police
had initially been unaware that Mr. Nazim resided on the premises, despite the fact that the
operation was personally directed by Police Commissioner Waheed, who was Mr. Nazim’s
close associate. Such action against the incumbent Minister for Defence can be executed
only with the President’s knowledge, which shows that no citizen of Maldives is safe from
government intrusion.
44.
With regard to the right to a fair trial, the source submits that Mr. Nazim’s lawyers
did not have adequate time to prepare a case. In addition, the Maldives Police Service and
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the Prosecutor General withheld vital information while the court ignored factual evidence
that proves beyond reasonable doubt that Mr. Nazim was framed by the Government for
political reasons. The dispute over the items the police claimed to have found in the
apartment bedroom is borne out by the prosecution’s omission of the pen drive and the
explosive device from the charge and the statement that the police only found a pistol and
three bullets.
45.
According to the source, in addition, while the appeal was pending in the Supreme
Court, the police received DNA test results confirming that the DNA on the pistol matched
that of the former Vice-President, Ahmed Adeeb.6 The police then submitted the DNA
report to the Prosecutor General. According to the source, the day before the DNA test
results were submitted to the Supreme Court, President Yameen had met with Police
Commissioner Ahmed Areef and Prosecutor General Aishath Bisham to instruct the latter
to suppress the evidence until the President had made a decision about whether to send the
results to the Supreme Court. On the same day, Minister of Home Affairs, Umar Naseer,
resigned because of President Yameen’s interference in the submission of the DNA test
results.
46.
The source states that the police had also confirmed that the fingerprints found on
the weapon did not match those of Mr. Nazim or anyone in his household. The source
mentions that, in addition, the police failed to explain to the court how Mr. Nazim could
have had the small leather pouch containing the pistol in his possession without leaving his
fingerprints on it.
47.
The source submits that while there is no requirement to video record searches under
written regulations, the standard operating procedure adopted and implemented by the
Maldives Police Service requires video recording of all raids and searches conducted by its
officers.
48.
The source adds that the court arbitrarily restricted the number of witnesses the
defence was able to call. As a result, Mr. Nazim’s legal team had no opportunity to prove
through the witnesses why he could not be held responsible for the incriminating items.
Furthermore, the Criminal Court prevented the defence from calling witnesses to consider
the allegation that Police Investigating Officer Ahmed Azmath Abdullah, acting on the
orders of Police Commissioner Hussain Waheed who was collaborating with former Vice-
President Ahmed Adeeb, had obtained the search warrant from a judge at midnight on 17
January 2015 based on a non-existent intelligence report. In addition, the court failed to
summon former Vice-President Adeeb or Police Commissioner Waheed to clarify why they
had been with the Prosecutor General in a police car on the same street when the police
entered Mr. Nazim’s residence.
49.
Mr. Nazim’s appeal to the High Court was marked by several unexplained delays
between hearings. Furthermore, the prosecution submitted a confidential army report and
the court heard from its author, Ali Ihsan, that the pistol allegedly found by the police had
been stolen from a military armoury, not imported, casting doubt on Mr. Nazim’s guilt. The
source argues that those who planted the firearms and framed Mr. Nazim are the very
people who stole the pistol. Four months after the official conclusion of the appeal
hearings, without prior notice the High Court summoned all the parties and gave each party
6 Mr. Adeeb had been the influential Minister for Tourism in President Yameen’s administration before
his appointment as Vice-President in July 2015. Following an explosion on 28 September 2015 on the
presidential speedboat, from which President Yameen escaped unhurt, but in which his wife and
members of his staff were injured, Vice-President Adeeb and top military officials were arrested for
attempted assassination, and a large cache of arms that had been stolen from the military armoury was
discovered.
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five minutes to cross-examine six witnesses it had called on its own initiative. The court
said that they were the officers who had searched Mr. Nazim’s residence. The appeal was
rejected the next day based merely on the officers’ denial that they had planted the pistol.
50.
During the appeal proceedings before the Supreme Court, Mr. Nazim’s lawyers
discovered that the DNA samples collected from the pistol matched those of former Vice-
President Adeeb, which the police confirmed at a press briefing the following day. On 26
June 2016, the Prosecutor General sent the DNA report received from the police to the
Supreme Court. Nevertheless, the Supreme Court hurriedly dismissed the appeal the next
day without considering the new evidence or giving any reasons for its decision.
51.
The source reiterates its concerns about the imprisonment by the Government of
political opponents following unfair, politicized trials in recent years. Mr. Nazim’s case is
another example of the specific targeting of political leaders whose views oppose those of
the Government of President Abdulla Yameen Abdul Gayoom. Indeed, the issue of fairness
in the judiciary was one of the reasons that the Commonwealth Ministerial Action Group
decided in September 2016 to place Maldives on its formal agenda, a decision which led
Maldives to withdraw from the Commonwealth.
Discussion
52.
The Working Group thanks the source and the Government for their extensive
submissions in relation to Mr. Nazim’s legal proceedings. The Working Group considers in
turn each of the categories applied by it, mindful that it is entitled to assess the laws and the
proceedings of the court in national jurisdictions seeking only to determine the observance
of the relevant rules of international law.7 Furthermore, the Working Group notes that, as a
matter of international law, especially concerning State responsibility, States have a duty to
ensure that all their institutions respect the obligations arising from international law.
53.
The Working Group first considers whether the present case falls within categories
II and V. In that regard, the Working Group considers that the following factors require
specific attention:
(a)
There has been a pattern of criminal proceedings brought against the real or
perceived political opponents of the Government in recent years in Maldives.8 The current
case is one more instance indicating the presence of such persecution;
(b)
The search for an illegal weapon by the police in the residence of the
incumbent Minister for Defence and National Security, whom the Government admitted
was the President’s most trusted cabinet minister;
(c)
The fact that Mr. Nazim’s removal from the position of Minister for Defence
and National Security was followed by the promotion of the Minister for Tourism, Ahmed
Adeeb, to Vice-President and his alleged assassination attempt against the President;
(d)
The High Court’s rejection of Mr. Nazim’s appeal, despite the submission of
a confidential army report and the testimony of its author, a member of the military, that the
pistol had been stolen from the armoury rather than being imported from abroad;
7 See opinion No. 40/2005.
8 See, for example, opinion No. 33/2015. See also European Parliament resolution of 17 December
2015 on the situation in the Maldives (2015/3017(RSP)), available from
www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2015-0464&language=EN;
European Parliament resolution of 30 April 2015 on the situation in the Maldives (2015/2662(RSP)),
available from www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2015-
0180&language=EN; A/HRC/23/43/Add.3, para. 51; and CCPR/C/MDV/CO/1, para. 20.
A/HRC/WGAD/2016/59
11
(e)
The Supreme Court’s summary dismissal of an appeal the day after the
prosecution had submitted the police DNA report revealing a match between the DNA
samples collected from the pistol in question and former Vice-President Adeeb’s DNA.
54.
In the light of the above, the Working Group is of the view that there is a violation
of Mr. Nazim’s right to freedom of political participation under article 21 (1) of the
Universal Declaration of Human Rights, article 25 (a) of the International Covenant on
Civil and Political Rights and article 26 of the Maldivian Constitution. The case therefore
falls within category II of the arbitrary detention categories referred to by the Working
Group when considering cases submitted to it.
55.
In relation to category III, the Working Group notes that Mr. Nazim’s trial was the
subject of a great deal of attention and scrutiny, both within and outside Maldives. The
Working Group notes the wide range of international human rights experts who are familiar
with Mr. Nazim’s case and have observed that his trial did not meet international human
rights standards, including the Office of the United Nations High Commissioner for Human
Rights,9 the International Commission of Jurists and South Asians for Human Rights,10
Asian Centre for Human Rights11 and Commonwealth Human Rights Initiative.12
56.
In its considerations, the Working Group made reference to the conclusions
contained in the report of the joint delegation of the International Commission of Jurists
and South Asians for Human Rights that had conducted a fact-finding mission to Maldives
from 5 to 13 May 2015. During the mission, the delegation met with a broad cross section
of stakeholders from the Government, the parliament, independent constitutional bodies,
the legal community, political parties, civil society, the former Chief Justice of the
Maldivian Supreme Court and other former officials from the previous Government.
57.
As in the trial against President Nasheed (see opinion No. 33/2015), there appear to
have been significant procedural irregularities that amount to a failure to ensure fairness
and equality of arms in the treatment of Mr. Nazim’s defence team. The court apparently
refused to allow the defence to present important rebuttal evidence purporting to show that
key prosecution evidence had been fabricated. That included alleged evidence that the
fingerprints lifted from the items of evidence confiscated from Mr. Nazim’s apartment did
not match his fingerprints and that the content of the confiscated pen drive supposedly
containing details of a plot to overthrow the Government had been fabricated.13
58.
The European Parliament, in its two resolutions on the situation in Maldives,
criticized the conduct of Mr. Nazim’s trial and those of other political figures such as
former President Mohamed Nasheed and former Deputy Speaker of the Majlis, Ahmed
Nazim. Noting opinion No. 33/2015, it called upon the Government of Maldives to
“release, immediately and unconditionally, former president Mohamed Nasheed, former
Vice-president Ahmed Adeeb and former defence ministers Tholhath Ibrahim and
Mohamed Nazim, together with Sheikh Imran Abdulla and other political prisoners, and to
9 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15915.
10 See http://icj2.wpengine.com/wp-content/uploads/2015/08/Maldives-Justice-Adrift-Rule-of-Law-
Publications-fact-finding-report-2015-ENG.pdf.
11 See www.achrweb.org/Review/2015/245-15.html.
12 See www.humanrightsinitiative.org/download/1474271150CMAG%20Final%20submission%20-
%20Maldives%20-%20CHRI%2018%20September%202016.pdf.
13 See http://icj2.wpengine.com/wp-content/uploads/2015/08/Maldives-Justice-Adrift-Rule-of-Law-
Publications-fact-finding-report-2015-ENG.pdf.
A/HRC/WGAD/2016/59
12
clear them of all charges” and to “guarantee full impartiality of the judiciary and to respect
due process of law and the right to a fair, impartial and independent trial”.14
59.
In addition, the problems associated with the judiciary in Maldives, including its
actual and perceived lack of independence and the “reactivation of old cases to arrest
opposition members of Parliament or bar them from Parliament”,15 have been documented
by the United Nations in recent years. In her report on her mission to Maldives in 2013, the
Special Rapporteur on the independence of judges and lawyers noted that, while the 2008
Constitution had completely overturned the structure of the judiciary, the same people who
had been in place and in charge, conditioned under a system of patronage, remained in their
positions. In her view, such an abrupt transformation of the justice system required time,
careful management, revised legislation and training in order to successfully change
mindsets and culture. In addition, many people believed that some judges who were
currently sitting lacked the proper education and training (see A/HRC/23/43/Add.3, para.
51, and CCPR/C/MDV/CO/1, para. 20). Those reports point to the presence of systemic
problems in Maldives involving the arrest of political opposition leaders, the lack of
independence of the judiciary and procedural shortcomings in providing a fair trial. It is
noteworthy that the Inter-Parliamentary Union Committee on the Human Rights of
Parliamentarians has raised similar concerns.16
60.
While that information from multiple sources does not bind the Working Group, it is
difficult for the Government to credibly contend that Mr. Nazim’s trial met international
standards despite overwhelming evidence to the contrary from a variety of international
sources. The Working Group has considered each of the alleged due process violations. In
doing so, the Working Group emphasizes that it did not substitute itself for a domestic
appellate tribunal, but considered whether the facts in Mr. Nazim’s case demonstrate a
failure by the Government to afford him a fair trial in view of the international standards on
the deprivation of liberty. The Working Group reiterates its well-established jurisprudence
that it has consistently refrained from taking the place of judicial authorities or acting as a
kind of supranational tribunal.17
61.
In its jurisprudence, the Working Group has also established the ways in which it
deals with evidentiary issues. Its approach is in line with the ruling of the International
Court of Justice in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of
the Congo), which establishes the evidentiary position for claims to succeed in human
rights cases, a position which the Working Group has adopted on previous occasions for its
own opinions in individual cases. 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). The Working Group recalls that where it is alleged that a person
has not been afforded, by a public authority, certain procedural guarantees to which he or
she was entitled, the burden of proof should rest with the public authority, because the latter
is in a better position to demonstrate that it has followed the appropriate procedures and
applied the guarantees required by law.18
62.
In the view of the Working Group, there were several serious due process violations
that, taken together, demonstrate that Mr. Nazim did not receive a fair trial. Those
14 See European Parliament resolutions of 30 April 2015 and of 17 December 2015 on the situation in
the Maldives (2015/3017(RSP)) and (2015/2662(RSP)).
15 See http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13917
LangID=E.
16 See www.ipu.org/hr-e/196/MLD16.pdf.
17 See opinion No. 40/2005, para. 22.
18 See opinion No. 41/2013, para. 27.
A/HRC/WGAD/2016/59
13
violations have not been sufficiently rebutted by the Government, including through
documentary evidence of the trial proceedings and the judgment. The Working Group is not
convinced by the contention of the Government that the petition is simply factually
incorrect or mischaracterized. Even though the Government states that no fingerprints or
DNA from anyone involved in the search have been found, it has failed to provide an
adequate answer to the question of whether the pistol was planted in the first place and why
the DNA present on the pistol matched that of former Vice-President Ahmed Adeeb.
Furthermore, the Working Group is not convinced by the contention of the Government
that since “the offence itself is very straightforward”, the time afforded to the defence team
of less than one week was sufficient for the proper preparation of the defence. The Working
Group emphasizes that, in its own submissions, the Government characterized the offence
as “serious” and “one that constitutes an abuse of the high political office with which [Mr.
Nazim] was entrusted” (see para. 27 above). Moreover, the Working Group cannot accept
that the court acted in accordance with international standards when it confirmed non-
disclosure of evidence, which the contesting party believed to be of significance in the
exercise of the right to defence, due to national security concerns.
63.
More specifically, the serious due process violations include:
(a)
The planting of the pistol and bullets in Mr. Nazim’s wife’s apartment by the
police, which necessitated the violation of standard police procedures, and the continued
detention and prosecution of Mr. Nazim, despite the revelations about the fingerprints on
the pistol, suggesting that the arrest and detention were based on a fabrication;
(b)
The trial court’s granting of only five days for Mr. Nazim’s lawyers to
prepare a legal defence against a serious criminal charge for which he would eventually
receive an 11-year sentence;
(c)
The limits placed on Mr. Nazim’s presentation of witnesses and on his cross-
examination of prosecution witnesses by the trial court and the High Court;
(d)
The limited provision of evidence to the defence team, including the fact that
26 of the 51 documents submitted by the prosecution to the court were “secret” in nature, as
was the fingerprint evidence report;
(e)
Placing the burden of proof on Mr. Nazim to demonstrate that the items
inside the black bag that was retrieved from his house did not belong to him;
(f)
The trial court’s failure to provide Mr. Nazim’s lawyers with the documents
necessary to mount their appeal by the appeal deadline, which forced them to rely on their
own recollection of the judgment when it was read out in court;
(g)
The High Court’s five-month delay in hearing Mr. Nazim’s appeal owing to
the transfer of the presiding judge and the Supreme Court’s rejection of the petition to
expedite the appeal.
64.
The Working Group considers that the notable breaches of law, in view of the
above-mentioned accounts, include:
(a)
The right not to be subjected to arbitrary arrest and detention (arts. 3 and 9 of
the Universal Declaration of Human Rights, art. 9 (1) of the Covenant and arts. 21 and 45
of the Maldivian Constitution);
(b)
The right to have adequate time and facilities for the preparation of one’s
defence (art. 11 (1) of the Universal Declaration of Human Rights, art. 14 (3) (b) of the
Covenant and art. 51 (e) of the Constitution);
A/HRC/WGAD/2016/59
14
(c)
The right to examine prosecution witnesses and call and examine witnesses
for the defence (art. 11 (1) of the Universal Declaration of Human Rights, art. 14 (3) (e) of
the Covenant and art. 51 (g) of the Constitution);
(d)
The right to a fair and public hearing (art. 10 of the Universal Declaration of
Human Rights, art. 14 (1) of the Covenant and art. 42 (a) and (b) of the Constitution);
(e)
The right to the presumption of innocence (art. 11 (1) of the Universal
Declaration of Human Rights, art. 14 (2) of the Covenant and art. 51 (h) of the
Constitution);
(f)
The right to appeal (art. 11 (1) of the Universal Declaration of Human Rights,
art. 14 (5) of the Covenant and art. 56 of the Constitution);
(g)
The right to a speedy trial (art. 11 (1) of the Universal Declaration of Human
Rights, art. 14 (3) (c) of the Covenant and arts. 42 (a) and 51 (b) of the Constitution).
65.
The Working Group concludes that the breaches of articles 3, 9, 10 and 11 of the
Universal Declaration of Human Rights and articles 9 and 14 of the Covenant, as well as
the corresponding provisions in the Constitution of Maldives are, in Mr. Nazim’s case, of
such gravity as to render his deprivation of liberty arbitrary, thus falling within category III.
66.
The Working Group places on record its concern about Mr. Nazim’s physical and
psychological integrity from his arrest, detention and imprisonment since January 2015. In
particular, the Working Group refers to the allegations made by the source that Mr. Nazim
has been held in solitary confinement and not given full access to medical care for the
treatment of his deteriorating eyesight, heart conditions, varicose veins and back pain. The
trial court’s rejection of Mr. Nazim’s petition for medical treatment abroad, which was
subsequently granted by the Government, provides further reason to doubt the judges’
impartiality and interest in the well-being of their defendant. The Government’s refusal to
allow Mr. Nazim to seek less expensive treatment in India or Malaysia and its rejection of
his application for extension of medical leave in Singapore also raise concerns.
67.
The Working Group recalls that efforts to abolish solitary confinement as a
punishment or to restrict its use should be undertaken and encouraged. In that regard, the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, to which Maldives acceded in 2004, obliges each State party to undertake to
prevent cruel, inhuman or degrading treatment or punishment (art. 16). More specifically,
the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules) adopted by the General Assembly on 17 December 2015, ban unlimited or
unrequired prohibition of family contact (rule 43 (3)) and indefinite or prolonged solitary
confinement (rule 43 (1) (a) and (b)) where solitary confinement is defined as the
confinement of prisoners for 22 hours or more a day without meaningful human contact,
and prolonged solitary confinement as solitary confinement for a time period in excess of
15 consecutive days (rule 44).
68.
Maldives is a signatory of the Charter of Democracy of the South Asian Association
for Regional Cooperation, 19 which commits member States to continue to strengthen
democratic institutions and reinforce democratic practices, to guarantee the independence
of the judiciary and primacy of the rule of law, and to adhere to the Charter of the United
Nations and other international instruments to which they are parties. The rule of law ought
not to be confused with rule by law, the subversion of law as a tool for arbitrary rule by
Government in collusion with the judiciary, paving the way for the hatred of anyone to lead
19 See http://saarc-sec.org/SAARC-Charter-of-Democracy/88.
A/HRC/WGAD/2016/59
15
to deviation from justice. The case of Mr. Nazim’s arrest, detention and imprisonment
appears to fit the pattern of rule by law.
69.
The Working Group refers to its statement in its annual report (A/HRC/19/57, para.
69) indicating that arbitrary deprivations of liberty constitute a violation of peremptory
norms (jus cogens) of international law that are non-derogable, a position that echoes that
of the Human Rights Committee in paragraph 11 of its general comment No. 29 (2001) on
derogations from provisions of the Covenant during a state of emergency.
Disposition
70.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mohamed Nazim, being in contravention of articles 3,
9, 10, 11 and 21 of the Universal Declaration of Human Rights and of articles 9, 14
and 25 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within categories II and III.
71.
Consequent upon the opinion rendered, the Working Group requests the
Government of Maldives to take the necessary steps to remedy the situation of Mr. Nazim
without delay and to 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 International Covenant on Civil and Political Rights.
72.
Taking into account all the circumstances of the case, the Working Group considers
that an adequate remedy would be to release Mr. Nazim immediately and accord him an
enforceable right to reparations, in accordance with international law.
73.
The Working Group requests the Government to provide an invitation to the
Working Group for a country visit.
Follow-up procedure
74.
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. Nazim has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Nazim;
(c)
Whether an investigation has been conducted into the violation of Mr.
Nazim’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.
75.
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.
76.
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
A/HRC/WGAD/2016/59
16
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.
77.
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.20
[Adopted on 25 November 2016]
20 See Human Rights Council resolution 33/30, paras. 3 and 7.