Opinion; Subjects: JORDAN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.16-17466(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-fifth session, 18-27 April 2016
Opinion No. 9/2016 concerning Amer Jamil Jubran (Jordan)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its
decision 1/102 and extended it for a three-year period in its resolution 15/18 of
30 September 2010. The mandate was extended for a further three years in resolution 24/7
of 26 September 2013.
2.
In accordance with its methods of work (A/HRC/30/69), on 9 October 2015 the
Working Group transmitted a communication to the Government of Jordan concerning
Amer Jamil Jubran. The Government replied to the communication on 30 November 2015.
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 International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
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/2016/9
General Assembly
Distr.: General
10 October 2016
Original: English
A/HRC/WGAD/2016/9
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(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation or
disability or other status, that aims towards or can result in ignoring the equality of human
beings (category V).
Submissions
Communication from the source
4.
Mr. Jubran, born on 21 March 1969, is a Jordanian citizen of Palestinian descendent.
He was the holder of passport No. 9691028935, which was issued by the Government of
Jordan on 24 January 2000 and expired on 24 January 2005.
5.
Prior to his detention, Mr. Jubran was an activist and advocate for the rights of the
Palestinian people and for the rights of people living in Iraq and neighbouring countries. He
lived for more than 10 years in the United States of America, where he engaged in
advocacy and played a leading role in the anti-war movement.
6.
The source claims that Mr. Jubran was questioned by United States authorities on
several occasions because of his political activities. On 4 November 2002, following a
march for Palestine held in Boston, Mr. Jubran was arrested by a joint patrol of the
Immigration and Naturalization Service and the Federal Bureau of Investigation. The
source reports that Mr. Jubran became afraid that he could face prosecution in the United
States and decided to voluntarily return to Jordan in 2004.
7.
According to the source, on 5 May 2014 Mr. Jubran was arrested at his home in
Jordan without a warrant, in the middle of the night, by the agents of the General
Intelligence Directorate of Jordan. About 20 agents dressed in military uniform broke into
his home and used violence to restrain him. During the arrest, they insulted and threatened
to kill him, using derogatory words related to his Palestinian descent. They also searched
his home and seized various items.
8.
Mr. Jubran was then taken to an undisclosed location, where he was held
incommunicado and without charges for more than two months. The location was later
revealed to the family as being the headquarters of the General Intelligence Directorate.
The source submits that, during that period, Mr. Jubran was subjected to torture and other
ill-treatment and threats were made against the members of his family. After the officers of
the Directorate succeeded in forcing him to confess, through torture, to the offences
imputed to him, they transferred him to a regular detention facility in the district of Salt.
9.
On 7 July 2014, a joint urgent appeal relating to Mr. Jubran’s case was addressed to
the Government of Jordan by the Working Group, the Special Rapporteur on the promotion
and protection of the right to freedom of opinion and expression and the Special Rapporteur
on the promotion and protection of human rights and fundamental freedoms while
countering terrorism. In the appeal, concerns were expressed about the irregularities of the
judicial proceedings, the incommunicado detention, the lack of access to a defence lawyer
and the fact that Mr. Jubran’s arrest and detention might have been related to the peaceful
exercise of his right to freedom of expression. The Government of Jordan has not replied to
the appeal.
10.
In August 2014, Mr. Jubran and six other individuals were charged with a number of
terrorism-related offences and brought to trial before the State Security Court of Jordan. In
particular, Mr. Jubran was charged with planning to carry out attacks against United States
soldiers stationed in Jordan, with having membership in the organization Hizbullah, with
committing acts that threaten to harm relations with a foreign Government and with being
in possession of firearms and explosives.
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11.
The source submits that the evidence presented against Mr. Jubran was false since it
was obtained under torture. The arrest records presented by the prosecutor at the trial were
contested by the defence lawyer as containing false information and being forged. Those
records were not presented by the officers who produced them, and the defence lawyer was
not allowed to call the officers as witnesses or to question them about the legality of the
arrest reports.
12.
On 29 July 2015, the State Security Court found Mr. Jubran guilty of all charges
against him and sentenced him to 10 years of imprisonment with punitive labour. He was
convicted under the Anti-Terrorism Law (Law No. 55 of 2006), as amended, for violations
of articles 3 (a)-(c) and (w); 7 (c); 76; 147 (1) and (2); and 148 (1), (2) and (5) of the Penal
Code (Law No. 16 of 1960).
13.
Mr. Jubran appealed against both the verdict and the sentence. A review of the case
by the Court of Cassation of Jordan was scheduled to be held in September 2015 but was
postponed. The new date for the appeal hearing has reportedly not yet been notified to
Mr. Jubran’s defence lawyer.
14.
The source submits that the arrest and detention of Mr. Jubran falls under categories
II and III of the categories used by the Working Group to determine whether a given case of
deprivation of liberty is arbitrary.
15.
With regard to category II, the source asserts that Mr. Jubran’s advocacy work has
always been peaceful and that Mr. Jubran was arrested, detained, imprisoned, ill-treated and
tortured for the purpose of silencing him as a writer, political activist and advocate of the
rights of the Palestinian people. The source argues that his deprivation of liberty resulted
from the peaceful exercise of the rights to freedom of opinion and expression guaranteed
under articles 18 and 19 of the International Covenant on Civil and Political Rights, which
Jordan ratified on 28 May 1975, and articles 18 and 19 of the Universal Declaration of
Human Rights.
16.
With regard to category III, the source submits that Mr. Jubran was arrested without
a warrant, was held incommunicado for two months from the moment of his arrest on
5 May 2015 and had no access to a legal representative during that period. During the same
period, he was not allowed to inform his family of his detention, nor did the General
Intelligence Directorate authorities inform the family of his whereabouts. The source argues
that these actions violate common article 9 of the Universal Declaration of Human Rights
and the Covenant.
17.
Furthermore, the source claims that, during his incommunicado detention,
Mr. Jubran was subjected to repeated interrogation by officers of the General Intelligence
Directorate in the absence of legal counsel and to torture and ill-treatment with the intention
of getting him to sign a confession of guilt. During his trial before the State Security Court,
Mr. Jubran complained that he had been tortured and that the confession used to incriminate
him had been extracted from him under duress. Nevertheless, the Court considered that the
confession of Mr. Jubran constituted sufficient evidence to establish his guilt and to
sentence him. The source argues that this constitutes a violation of articles 5 and 10 of the
Universal Declaration of Human Rights and of articles 7 and 14 of the Covenant.
18.
The source claims that the Court ignored all the motions submitted by the defence
lawyer to bring evidence exculpating Mr. Jubran and denied the lawyer the right to question
the witnesses presented by the prosecution, in particular the General Intelligence
Directorate officers who arrested Mr. Jubran and allegedly tortured him. The source argues
that this is a violation of articles 10 and 11 of the Universal Declaration of Human Rights
and of article 14 of the Covenant.
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Response from the Government
19.
On 6 October 2015, the Working Group addressed a communication to the
Government of Jordan requesting detailed information about the reasons, circumstances and
legal grounds justifying Mr. Jubran’s arrest, detention and continued deprivation of liberty.
The Working Group also requested the Government to provide any other information
relating to the case and situation of Mr. Jubran, including the judicial proceedings against
him.
20.
In its response, dated 30 November 2015, the Government contends that the
competent court reviewed the case of Mr. Jubran and issued a judgment, which could be
appealed.
Further comments from the source
21.
The source submits that the reply of the Government fails to address the issues
raised by the source, that a verdict was handed down on 29 July 2015 by the State Security
Court and that a motion for appeal was denied by the Court of Cassation.
22.
The source contends that if the Government’s reply refers to the judgment of the
Court of Cassation, then it is incorrect to state that it can be appealed. According to the
source, the Court of Cassation issued a decision before mid-November 2015 affirming the
verdict of the State Security Court. While doing so, it did not consider the evidence that the
verdict of the State Security Court was based on false confessions obtained through torture.
23.
It is not clear whether the Court of Cassation rejected the appeal or confirmed the
judgment of the State Security Court.
Discussion
24.
Being engaged in human rights advocacy does not provide immunity from illegal
activities nor does it protect against any ensuing accountability for criminal acts. Being a
human rights advocate cannot exonerate anyone from his or her legal responsibility for
general crimes, let alone terrorist activities.
25.
Despite the fact that the Working Group did not receive sufficient information
regarding Mr. Jubran’s human rights advocacy work, the Group regrets that the
Government failed to provide detailed information about the illegal and terrorism-related
activities of Mr. Jubran.
26.
In that regard and given the repressive nature of the judicial proceedings that
Mr. Jubran has been subjected to, the Working Group believes that Mr. Jubran’s
deprivation of liberty is associated with his advocacy work.
27.
The Working Group confirms that the deprivation of liberty of Mr. Jubran resulted
from the peaceful exercise of the rights to freedom of opinion and expression guaranteed
under article 19 of the Covenant, which Jordan ratified on 28 May 1975, and of article 19 of
the Universal Declaration of Human Rights.
28.
The conviction and harsh sentencing of Mr. Jubran too are presumed to constitute an
act of reprisal resulting from his refusal to cooperate with the General Intelligence
Directorate as a possible infiltrator and informant, which constitutes a violation of the
fundamental right to freedom of conscience and political opinion guaranteed by the above-
mentioned articles of the Covenant.
29.
Accordingly, the deprivation of liberty of Mr. Jubran falls within category II of the
categories applicable to the consideration of cases submitted to the Working Group.
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30.
The Working Group notes with concern that Mr. Jubran was forcefully arrested on
5 May 2014 by the General Intelligence Directorate without a warrant and that he was then
placed in incommunicado detention for two months.
31.
During the period of detention, he had no access to a legal representative and was
not allowed to inform his family of his situation, nor did the General Intelligence
Directorate authorities inform the family of his whereabouts. The Working Group also finds
that during his incommunicado detention Mr. Jubran was subjected to repeated
interrogation by Directorate officers in the absence of legal counsel and to torture and ill-
treatment with the intention of forcing him to sign a confession of guilt.
32.
The arrest and detention were performed in clear violation of the international norms
on the arbitrary deprivation of liberty guaranteed in articles 7, 9 (1) and (2) and 10 (1) of
the Covenant and of articles 3, 5 and 9 of the Universal Declaration of Human Rights.
33.
Breaches of the law also occurred during Mr. Jubran’s subsequent trials. During the
trial before the State Security Court, and despite Mr. Jubran complaining that he had been
tortured and that the incriminating confessions were extracted under duress, the Court
considered, on 29 July 2015, in its verdict on case No. 5209/2014, that the confession of
Mr. Jubran constituted sufficient evidence to establish his guilt. The Court refused to accept
all the motions submitted by the defence lawyer to bring forward evidence exculpating
Mr. Jubran and denied the lawyer’s right to question the witnesses presented by the
prosecution, in particular the General Intelligence Directorate officers who arrested
Mr. Jubran and allegedly tortured him.
34.
The Court of Cassation, in its decision No. 1486/2015, confirmed the verdict handed
down by the State Security Court in late 2015. The Court of Cassation upheld the verdict
without paying due consideration to the arguments of the defence lawyer, despite the
presentation of Mr. Jubran’s detailed testimony concerning his torture at the hands of the
General Intelligence Directorate and the process through which the confessions were
fabricated and changed. The aforementioned judicial proceedings in both courts, in
particular, constitute a violation of articles 5 and 10 of the Universal Declaration of Human
Rights and of articles 7 and 14 of the Covenant.
35.
The Working Group notes that the State Security Court is a court of exception. In its
opinion No. 53/2013, the Group recalled:
The Committee against Torture and the Human Rights Committee have repeatedly
recommended that Jordan abolish special courts such as the State Security Court; for
example, the Human Rights Committee, in paragraph 12 of its concluding
observations in 2010 on the fourth periodic report of Jordan (CCPR/C/JOR/CO/4),
stated:
The Committee reiterates its concern at the limited organizational and functional
independence of the State Security Court. It also notes with concern that the Prime
Minister has the authority to refer cases that do not affect State security to this court.
…
The Committee reiterates its 1994 recommendation that the State party consider
abolishing the State Security Court (CCPR/C/79/Add.35, para. 16).
36.
The Working Group also notes that the Human Rights Committee, in its general
comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair
trial, stated that the provisions of article 14 apply to all courts and tribunals within the scope
of that article, whether ordinary or specialized, civilian or military (para. 22).
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37.
The Working Group also recalls that, in its annual report covering 2007, it expressed
concern about the continuing tendency towards deprivation of liberty by States abusing
states of emergency or derogation, invoking special powers specific to states of emergency
without formal declaration, having recourse to military, special or emergency courts, not
observing the principle of proportionality between the severity of the measures taken and
the situation concerned, and employing vague definitions of offences allegedly designed to
protect State security and combat terrorism (see A/HRC/7/4, para. 59).
38.
The source submitted that the 2011 reform process and the decision taken by the
Council of Ministers based on Royal Orders of 1 September 2013 have not brought the
Jordanian rules about the State Security Court into compliance with international law. The
Working Group agrees with this view. It notes that the maintenance of the State Security
Court does not satisfy the criteria set out for the narrow exception from a system of general
courts.
39.
The Working Group itself has also, in its jurisprudence, reviewed the issue of wide
and overbroad offences. The Working Group recalls its opinions No. 1/2003, No. 13/2007,
No. 1/2009 and No. 24/2011 relating to Viet Nam, in which it emphasized the importance
of ensuring that national law is consistent with the relevant provisions set forth in the
Universal Declaration of Human Rights and in the relevant international legal instruments
to which the State concerned has acceded.
40.
In this regard, the Working Group reaffirms that any national law touching upon
arrest and detention should be worded and implemented in a manner consistent with the
relevant international provisions set forth in the Universal Declaration of Human Rights
and in the relevant international legal instruments to which the State concerned has
acceded. Consequently, even if arrests and detentions are carried out in conformity with
national legislation, the Working Group must ensure that they are also consistent with the
relevant provisions of international human rights law. Provisions that are vague and whose
application is overbroad are at odds with the relevant norms of international law on the
administration of criminal justice.
41.
In paragraph 34 of its opinion No. 53/2013, the Working Group also referred to the
concerns expressed by the Human Rights Committee regarding the vague and broad
definition of “terrorist activities” contained in the Prevention of Terrorism Act passed in
2006. The Committee recommended that the State party review the Act and ensure that it
defines terrorism and terrorist acts in a manner that is precise and compatible with the
Covenant.
42.
The Working Group also reiterates its previous finding in its opinions No. 1/2009
and No. 24/2011 that broad criminal law provisions that “take advantage of democratic
freedoms and rights to abuse the interests of the State” are inherently inconsistent with any
of the rights and liberties guaranteed by the Universal Declaration of Human Rights and the
Covenant.
43.
The overbroad wordings of the so-called anti-terrorism laws and their imprecise and
often retroactive application raise an array of serious legal concerns.
44.
The charges against Mr. Jubran were basically based on the amendments to articles
3 (b) and 7 (c) of the Anti-Terrorism Law, which were not promulgated by the Government
of Jordan until June of 2014. Mr. Jubran was charged in August 2014, under that Law, for
“harming the relationship with a foreign Government”, which is viewed as a crime of
terrorism, further demonstrating the political and arbitrary nature of his arrest and
imprisonment.
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45.
Mr. Jubran’s trial for an alleged violation of a law that was enacted two months after
his arrest also constitutes a violation of article 15 of the Covenant, which stipulates that no
one should be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence, under national or international law, at the time when it
was committed, nor should a heavier penalty be imposed than the one that was applicable at
the time when the criminal offence was committed.
46.
Given the above observations, the deprivation of liberty of Mr. Jubran falls within
category III of the categories applicable to the consideration of cases submitted to the
Working Group.
Disposition
47.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Amer Jamil Jubran, being in contravention of articles 3,
5, 9, 10 and 19 of the Universal Declaration of Human Rights and of articles 7, 9 (1)
and (2), 10 (1), 14, 15 and 19 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories II and III of the categories applicable
to the consideration of cases submitted to the Working Group.
48.
Consequent upon the opinion rendered, the Working Group requests the
Government of Jordan to take the steps necessary to remedy the situation of Mr. Jubran
without delay and to bring it into conformity with the standards and principles set forth in
the Covenant.
49.
The Working Group considers that, taking into account all the circumstances of the
case, the adequate remedy would be to immediately release Mr. Jubran and accord him an
enforceable right to reparation in accordance with article 9 (5) of the Covenant.
50.
In the light of the allegations of torture and other ill-treatment inflicted upon the
detainee, the Working Group considers it appropriate, in accordance with article 33 (a) of
its methods of work, to refer these allegations to the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment for appropriate action.
[Adopted on 20 April 2016]