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.17-09940(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-eighth session, 19-28 April 2017
Opinion No. 15/2017 concerning Ahmed Mahloof (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/33/66), on 16 December 2016 the
Working Group transmitted to the Government of Maldives a communication concerning
Ahmed Mahloof. The Government replied to the communication on 17 March 2017. The
State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law 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).
United Nations
A/HRC/WGAD/2017/15
General Assembly
Distr.: General
16 June 2017
Original: English
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Submissions
Communication from the source
4.
Ahmed Mahloof, born on 26 March 1980, is a Maldivian citizen. The source reports
that prior to his arrest and detention, Mr. Mahloof engaged in political activity, being one of
the leading figures in establishing the Progressive Party of the Maldives in 2011, together
with the former President Maumoon Abdul Gayoom. Mr. Mahloof was also a spokesperson
for the coalition of opposition parties, the Maldives United Opposition, which calls on the
Government to engage in a dialogue and to establish an interim process, whereby all parties
can enact institutional reform and establish a path to democratic elections in 2018.
5.
Mr. Mahloof was expelled from the Progressive Party in February 2015, after he
became the only member of the People’s Majlis (parliament) and one of the first leaders
from within the Government to allege large-scale corruption and lack of transparency
within the Government. The source notes that Mr. Mahloof stood out as one of the most
outspoken critics of the current President. Since his expulsion from the party, Mr. Mahloof
has also been at the forefront of anti-Government protests triggered by the imprisonment of
former President Mohamed Nasheed in February 2015.
6.
The source reports that Mr. Mahloof was first arrested on 25 March 2015 because he
allegedly disturbed road barricades installed by the police and trespassed on a cordoned-off
area. According to the police, they had installed the barricades as part of security measures
taken in response to demonstrations held in Male’ by the opposition on 25 March 2015,
following the conviction of former President Mohamed Nasheed on terrorism charges on 13
March 2015 and the ongoing trial of former Defence Minister Mohamed Nazim. Mr.
Mahloof was formally accused of the offence of obstruction of police duty under section 75
of Law 5/2008 (the police act) with reference to section 72 of the act.
7.
Mr. Mahloof was detained in Dhoonidhoo detention centre and on 26 March 2015,
the criminal court extended his detention for a period of five days. On 31 March 2015, Mr.
Mahloof was again brought before the criminal court and was remanded in custody for a
further five days. On that occasion, the court ordered him to be put under house arrest.
8.
On 3 April 2015, Mr. Mahloof was again brought before the criminal court where
the judge who had convicted former President Nasheed for terrorism was sitting. The judge
offered Mr. Mahloof his release on condition that he would not participate in a public
assembly consisting of more than four people for the next 30 days. When Mr. Mahloof
refused to accept this condition, his detention was extended for a further 15 days.
9.
After the remand hearing, the police accused Mr. Mahloof of refusing to get into the
police vehicle returning him to Dhoonidhoo detention centre and of attempting to flee. Mr.
Mahloof was thus detained in Dhoonidhoo detention centre until 12 April 2015, when the
High Court set him free pending a possible trial. The High Court observed that according to
article 49 of the Constitution, “no person shall be detained in custody prior to sentencing,
unless the danger of the accused absconding or not appearing at trial, the protection of the
public, or potential interference with witnesses or evidence dictate otherwise. The release
may be subject to conditions of bail or other assurances to appear as required by the court”.
The High Court ruled that the extension of Mr. Mahloof’s detention did not apply to any of
the conditions of remand prescribed in the Constitution and therefore his continued
detention as a penalty for refusing to avoid assemblies of more than four people was
unlawful.
10.
More than eight months after the High Court ruling, on 11 January 2016 the
Prosecutor General formally charged Mr. Mahloof with the offence of obstruction of police
duty under section 75 of the police act, with reference to section 72 of the act, for refusing
to get into a police vehicle and for attempting to flee from the police on 3 April 2015.
11.
On 28 February 2016, in criminal proceedings against Mr. Mahloof regarding the
alleged incident of 3 April 2015, five police officers testified that Mr. Mahloof had tried to
escape from the police and had refused to get into the police van after leaving the criminal
court. Two defence witnesses testified that Mr. Mahloof was not trying to flee but merely to
embrace his wife.
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12.
On 5 April 2016, the Prosecutor General formally charged Mr. Mahloof with
another offence of obstruction of police duty under section 75 of the police act, with
reference to section 72 of the act, for crossing police barricades during the demonstration
held on 25 March 2015.
13.
On 18 May 2016, three police officers testified against Mr. Mahloof regarding the
incident that had occurred on 25 March 2015. One officer said that he had witnessed Mr.
Mahloof crossing barricades in the road and entering the area cordoned off by the police.
The other two officers testified that they had only heard about the misdemeanour through
the police radio and had reached the scene after the alleged incident, in order to arrest Mr.
Mahloof.
14.
The source states that on 19 June 2016, in violation of the criminal procedure, a
police officer was allowed to testify against Mr. Mahloof in relation to his first case after all
the prosecution and defence testimonies had concluded. The officer testified that on 3 April
2015, he was working at the detainee escort section of Male’ custodial facility and that after
Mr. Mahloof was brought out from his remand hearing, he had run out of the main gate of
the criminal court; that the officer had been the first to apprehend Mr. Mahloof as he ran
into the street; that when Mr. Mahloof came out of the door, the police vehicle had been
parked just outside the door; that he had run away while he was being requested to get into
the vehicle; and that he suspected that Mr. Mahloof had run away to escape from the police.
15.
On 10 July 2016, the concluding statements of both the prosecution and the defence
were heard regarding the alleged incident on 3 April 2015. On 18 July 2016, Mr. Mahloof
was unexpectedly summoned to a closed hearing, summarily convicted of the offence of
obstruction of police duty and sentenced to 4 months’ and 24 days’ imprisonment.
16.
The source also states that early on 18 July 2016, before Mr. Mahloof was sentenced
for his first case, he was summoned to a hearing on the second case against him. On that
occasion, the judge, despite objections from the defence, decided not to allow defence
witnesses to testify. According to the judge, this was because under sharia law and legal
principles, the prosecution is required to prove any charges and the defence does not
generally need to prove that the alleged offence did not take place.
17.
On 21 July 2016, defence lawyers representing Mr. Mahloof in the two cases went
on television and raised the following concerns regarding his two trials:
(a)
Apart from violating the Maldives Constitution, the detention of Mr. Mahloof
violated his rights under articles 9, 10, 19, 20 and 21 of the Universal Declaration of
Human Rights and 9, 14, 15, 19, 22 and 25 of the Covenant and constituted arbitrary
detention;
(b)
The violations of Mr. Mahloof’s right to a fair trial were of such gravity as to
give his detention an arbitrary character. The lawyers noted the haste with which Mr.
Mahloof’s trials were conducted and the lack of respect for the basic principles of a fair
trial and due process during a trial;
(c)
In the light of these concerns, the lawyers announced that they would be
submitting Mr. Mahloof’s case to the Working Group on Arbitrary Detention.
18.
Following the press conference held by Mr. Mahloof’s legal defence team, on 25
July 2016, the criminal court announced that a lawyer representing Mr. Mahloof in his
second case would be barred from representing him in the case. It stated that this was
because in his media interview, the lawyer had attempted to create a bad impression among
the public regarding the case, thereby attempting to unduly influence the outcome of the
case using public media. On the same day, his lawyer having been barred from the case,
Mr. Mahloof was again convicted for obstruction of police duty in the second case against
him and imprisoned for six months.
19.
On 10 August 2016, Mr. Mahloof’s second conviction was appealed to the High
Court. The appeal was registered at the Court on 22 August 2016 under case number
2016/HC-A/364. The source states that since that date, despite a request made to the High
Court on 25 September 2016 to expedite the case and a request made on 27 October 2016 to
suspend Mr. Mahloof’s second hearing pending appeal, the court has not yet replied. The
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written submission by the Prosecutor General’s office, dated 2 November 2016, reiterates
the decision of the lower court on grounds of the judge’s discretion.
20.
The source further states that the Department of Corrections gave Mr. Mahloof 10
days’ leave to seek medical attention in India, where he is currently undergoing treatment
for a skin ailment, accompanied by his family. The 10 days’ medical leave will not be
deducted from Mr. Mahloof’s sentence, which is expected to end on 27 May 2017.
21.
The source maintains that the detention of Mr. Mahloof constitutes an arbitrary
deprivation of his liberty within categories I, II, III and V of the arbitrary detention
categories referred to by the Working Group when considering cases submitted to it.
22.
Firstly, the source argues that Mr. Mahloof’s detention in both cases is arbitrary
under category I, because his alleged actions do not satisfy the criteria for imprisonment set
forth in the new Penal Code. The source specifies that under section 1004 of the new Penal
Code on the amount of punishment called for in the guideline sentencing table that may be
imposed through any authorized punishment method, a sentencing judge may translate
some or all of a sentence of imprisonment into an alternative, non-incarcerative form of
punishment in lengths or amounts that are the punitive equivalent of the prison term. The
table in section 1005 (the punishment method equivalency table) identifies the length or
amount of each non-incarcerative method of punishment that is equivalent to a given term
of imprisonment. The source notes that the Code therefore encourages the use of non-
incarcerative punishment forms, while still assuring the public and victims that offenders
are in fact getting the full amount of punishment that they deserve for their offences.
23.
The source also notes that section 75 (b) of the police act, under which Mr. Mahloof
was convicted in both cases, states that the penalty for obstructing, hindering or attempting
to obstruct or hinder the implementation of the role and functions of the police shall be the
imposition of a fine not exceeding Rf 12,000 (equivalent to approximately $780) or
imprisonment in jail for a period not exceeding six months.
24.
The source further argues that given that Mr. Mahloof allegedly committed the
offence before the new Penal Code came into effect on 16 July 2015, the Constitution
requires that he receive a lesser punishment. The source specifies that article 59 of the
Constitution states that if the punishment for an offence has been reduced between the time
of commission and the time of sentencing, the accused is entitled to benefit from the lesser
punishment. Section 10 (d) of the Penal Code states that “as a general principle this Code
does not apply to offences occurring or committed prior to its effective date.
Notwithstanding the aforesaid, in determining a sentence after commencement of this Code,
for an offence which has occurred or has been committed prior to the effective date of this
Code, where the sentence prescribed for the offence under this Code is less than the
sentence prescribed under the previous Act, the penalty for the offence shall be prescribed
in accordance with this Code.”
25.
Under the police act, the maximum penalty for the offence of which Mr. Mahloof is
convicted is imprisonment for a period not exceeding six months. The corresponding
section in the Penal Code, section 532 (c), grades this offence as a class 1 misdemeanour.
Section 1002 (a) of the Penal Code shows that the baseline sentence for this misdemeanour
is imprisonment for 4 months and 24 days. In considering the “lesser punishment” as
prescribed in article 59 of the Constitution, the maximum penalty would therefore be 4
months and 24 days.
26.
According to the punishment equivalency table (section 1005 of the Penal Code), the
new prescribed maximum penalty of 4 months and 24 days would be converted into a fine
of Rf 26,400 (equivalent to approximately $1,718). Under section 75 of the police act, the
maximum fine is Rf 12,000 (equivalent to approximately $780). Therefore, according to
article 59 of the Constitution, the lesser punishment for Mr. Mahloof would be a fine of Rf
12,000.
27.
The source adds that when general adjustments to baseline sentences are applied to
the penalty, according to section 1100 of the Penal Code, it becomes evident that contrary
to the provisions of section 1101 of the Code, Mr. Mahloof does not qualify for a higher
level of culpability than the level required by the offence for which he was convicted. That
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is because, contrary to the provisions of section 1102 of the Code, his offence did not cause
special harm; he did not commit an offence in a manner displaying great cruelty or gross
disregard for human dignity, as specified in section 1103 of the Code; and his offence did
not have a victim to compensate, as prescribed in section 1105 of the Code.
28.
Finally, the source notes that section 1104 (d) (3) of the Penal Code states that “if
the offender has otherwise led a law-abiding life; then the baseline sentence for all offences
with which the offender has been charged shall be mitigated one or two levels, as the court
finds to be just”. According to the Penal Code, therefore, Mr. Mahloof’s mitigated sentence
would be 2 months and 12 days, which would be converted into a fine of Rf 14,400
(equivalent to approximately $937). That amount is still higher than the Rf 12,000
prescribed by the police act. Mr. Mahloof should therefore have been fined an amount not
exceeding Rf 12,000 for the offence.
29.
The source concludes that the criminal court failed to observe article 59 of the
Constitution and the sections of the Penal Code entitling Mr. Mahloof to the benefit of a
lesser punishment. The imprisonment of Mr. Mahloof therefore constitutes arbitrary
detention under category I of the arbitrary detention categories referred to by the Working
Group when considering cases submitted to it.
30.
In relation to category II, the source claims that Mr. Mahloof’s detention results
from his exercising his fundamental rights to freedom of opinion and expression, freedom
of association and freedom of political participation, provided for by articles 19, 22 (1) and
25 of the Covenant, to which Maldives acceded on 19 September 2006, as well as by
articles 19, 20 (1) and 21 of the Universal Declaration of Human Rights. The source further
refers to article 68 of the Constitution, which provides for courts to consider international
treaties to which Maldives is a party when interpreting and applying the rights and
freedoms contained in the Constitution.
31.
The source specifies that freedom of expression includes the right to a dissenting
political opinion. It therefore argues that the charge of obstructing police duty brought
against Mr. Mahloof was a pretext for the curtailment of his right to freedom of opinion and
expression as a political leader. The source recalls that Mr. Mahloof has been an outspoken
opponent of the Government of Maldives and has facilitated disclosure to the public of
information regarding an alleged large-scale corruption scheme involving the President.
32.
The source claims that in response to these and similar comments and actions of Mr.
Mahloof, the Government targeted him in an attempt to tarnish his image and silence him.
This pattern of the politically-motivated harassment of Mr. Mahloof can be seen in the past
and continues with his current conviction and detention. The source specifies that besides
Mr. Mahloof’s detentions outlined earlier, he was summoned by the police on 7 February
2016 and 12 February 2016 for questioning over his allegations of the President’s
involvement in the corruption scheme. On 11 March 2016, Mr. Mahloof was arrested for
participating in the anti-corruption rally. He was released on 17 March 2016.
33.
With regard to the alleged violation of the right to freedom of association, the source
recalls that Mr. Mahloof was the spokesperson for the newly formed coalition of opposition
parties, the Maldives United Opposition. The Government has not yet acknowledged the
coalition as a political force in the country.
34.
The source also recalls that Mr. Mahloof is in danger of losing his parliamentary
seat, according to article 73 (c) (2) of the Constitution, whereby a person is disqualified
from standing for election to the People’s Majlis if he or she has been convicted of a
criminal offence and is serving a sentence of more than 12 months. The source therefore
notes that any further possible politically-motivated convictions and subsequent
imprisonment of Mr. Mahloof would be likely to exceed the 12 months.
35.
With regard to category III, the source points to a number of alleged irregularities,
such as the failure to provide equality before the law, the right to an independent and
impartial tribunal, the right to have access to counsel, the right to prepare an adequate
defence and the right to a public trial, in contravention of article 14 (1), (2) and (3) of the
Covenant.
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36.
More specifically, the source alleges that Mr. Mahloof was refused the right to
present any defence witnesses during the hearings for the second case against him. In not
allowing Mr. Mahloof to present defence witnesses, the court argued that sharia law and
legal principles stipulate that the prosecution is required to prove any charges and that the
defence generally does not need to prove that the alleged offence did not take place. The
source argues that this decision violated the principle of equality of arms, as well as article
14 (2) (e) of the Covenant, which explicitly provides defendants in a criminal trial with the
right to obtain the attendance and examination of defence witnesses under the same
conditions as witnesses for the prosecution.
37.
The source further points to the unjustifiable haste of the court proceedings. At first,
the two cases were conducted by the criminal court at a typical pace, with a hearing once a
month, on average. However, on 19 June 2016, in violation of normal criminal procedure, a
police officer was allowed to testify against Mr. Mahloof in relation to the first case against
him, after all the prosecution and defence testimonies had concluded. On 10 July 2016, the
concluding statements of both the prosecution and the defence were heard regarding the
incident involving Mr. Mahloof’s alleged flight from the police. On 18 July 2016, Mr.
Mahloof was summoned to a closed hearing, convicted for the offence of obstruction of
police duty and given a prison sentence of 4 months and 24 days. Before that sentence was
pronounced on the afternoon of 18 July 2016, he had been summoned for a hearing of his
second case that same day. During that hearing, the judge announced that the concluding
statements would be heard the next day and, despite objections from the defence, decided
not to allow defence witnesses to testify. On 25 July 2016, his lawyer having been barred
from taking part in the proceedings, Mr. Mahloof was brought to the criminal court from
Maafushi prison, again convicted for obstruction of police duty in the second case against
him and imprisoned for six additional months.
38.
It is further argued that there is no credible evidence to prove that Mr. Mahloof
crossed police barricades, as alleged during the hearings on his second case. Two of the
witness testimonies at his second trial were based on hearsay, which is a purported violation
of international standards of due process, sharia law and the requirements of offence
liability, as set out in chapter 20 of the Penal Code. Furthermore, given that only one
witness testified that Mr. Mahloof had crossed the barricades, the standard of adequate
evidence was not met, as the sharia law applicable in such circumstances stipulates that two
witnesses are required to prove a case.
39.
Moreover, the source alleges that the criminal court interfered with the right to
access legal counsel, in contravention of article 14 (3) of the Covenant and article 48 (b) of
the Constitution. The source recalls that following the press conference held by Mr.
Mahloof’s lawyers on 25 July 2016, the criminal court announced that the lawyer
representing Mr. Mahloof in his second case would be barred from representing him
because he had attempted to unduly influence the outcome of the case using public media.
40.
In addition to being deprived of access to legal counsel, Mr. Mahloof was allegedly
deprived of his due process rights to produce his own evidence and witnesses. At the
hearing held on 18 July 2016, the judge decided not to allow defence witnesses to testify, as
under sharia law and legal principles, the prosecution is required to prove any charges and
the defence generally does not need to prove that the alleged offence did not take place. The
source recalls that in matters of criminal evidence, the Maldivian courts follow sharia
evidence principles, which stipulate that when the plaintiff fails to produce two witnesses to
prove the case, the defendant must be given the opportunity to produce witnesses in his or
her defence. The source therefore argues that as only one policeman testified that Mr.
Mahloof had crossed the barricades, the defence should have been given an opportunity to
rebut the charge by producing witnesses. That opportunity was denied to the defence.
41.
The source further alleges that the criminal court failed to ensure a public trial,
contrary to article 14 (1) of the Covenant, article 10 of the Universal Declaration of Human
Rights, article 42 (a) and (b) of the Constitution of Maldives and article 71 of the Judicature
Act of Maldives. The source notes that the Government denied Mr. Mahloof’s request for
open and public hearings by summoning him to a closed hearing on 18 July 2016 and by
refusing to allow Maldivian and international observers access to the trial. The source
alleges that this constitutes a further violation of international law.
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42.
In addition, the source claims that the Government has violated Mr. Mahloof’s right
to be free of cruel, inhuman, or degrading treatment or punishment, in contravention of
article 7 of the Covenant, article 5 of the Universal Declaration of Human Rights, articles 1-
2 and 4-7 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, to which Maldives acceded on 20 April 2004, as well as of
article 54 of the Constitution of Maldives. The source recalls that following his first
conviction on 18 July 2016, Mr. Mahloof was incarcerated in Maafushi prison in solitary
confinement and had limited interactions with his family and legal team. The source also
recalls that the new Maldives act against torture prohibits solitary confinement.
43.
Finally, the source submits that Mr. Mahloof was arrested, detained and convicted
because of his political opinions, which were critical of and in opposition to the
Government, and his detention falls within category V of the arbitrary detention categories
referred to by the Working Group when considering cases submitted to it.
Response from the Government
44.
On 16 December 2016, the Working Group transmitted the allegations from the
source to the Government under its regular communications procedure. The Working
Group invited the Government to provide any information regarding the case and in
particular, on the allegations made by the source, both in respect of the facts and the
applicable legislation. The Working Group requested the Government to provide its reply
by 16 February 2017. On 6 February 2017, the Government requested an extension, which
was granted. The Government responded by 17 March 2017, as requested.
45.
The Government submits that the allegations are either factually incorrect or
constitute a mischaracterization of the position. The detention of Mr. Mahloof is justified,
in accordance with domestic and international law, following his lawful conviction for
criminal offences. His detention therefore does not satisfy the criteria of categories I, II, III
and V of the arbitrary detention categories referred to by the Working Group when
considering cases submitted to it.
46.
Regarding category I, the Government refers to resolution 1997/50 of the
Commission on Human Rights, in which detention is considered not to be arbitrary if it
results from a final decision taken by a domestic court “in conformity with domestic law,
with the relevant international standards set forth in the Universal Declaration of Human
Rights and with the relevant international instruments accepted by the States concerned”.
47.
Mr. Mahloof was convicted by a Maldivian court and in accordance with Maldivian
law. This fact precludes the case from being argued within category I. In both cases, Mr.
Mahloof was convicted under sections 72 and 75 of Law No. 5/2008 (police act), for
obstructing police duty.
48.
It is a well-established principle under Maldivian law that it is at the discretion of the
judge to determine the proper form of punishment from the various forms of punishment
provided by the law. In that respect, the judge is bound by article 59 of the Constitution and
section 10 (d) of the Penal Code, in that he or she must give due regard to the lesser
punishment the judge using his or her discretion chooses to be the proper and meaningful
form of punishment. Mr. Mahloof was given the lesser punishment, as required by the
Constitution, as he was sentenced to 4 months and 24 days.
49.
The Government notes that the assumption by the source that the judge should have
converted the baseline sentence of 4 months’ and 24 days’ imprisonment under the Penal
Code into a fine under sections 1004 and 1005 of the Penal Code is a misinterpretation of
the law. The conversion of the incarceration term provided in the guideline sentence table
in section 1002 of the Code is at the discretion of the judge, as is inherently evident from
the specific language of section 1004 of the Code.
50.
With regard to category II, the Government submits that when Mr. Mahloof was
arrested on 25 March 2015, his actions were not peaceful. More specifically, it is submitted
that Mr. Mahloof, while leading a public rally, had pushed the barricades aside and entered
a cordoned-off area. Such a “green zone” area, cordoned off by the Maldives Police Service
pursuant to section 24 (c) of the act on the freedom of peaceful assembly, contains key
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government institutions and security services headquarters, including the Office of the
President, the headquarters of the Maldives National Defence Force and the police
headquarters. These actions therefore fail to satisfy the definition of “peacefulness”, as
provided in section 9 of the act on the freedom of peaceful assembly.
51.
The Government also submits that the charge against Mr. Mahloof relates
specifically to the allegation of the individual offence committed by him, namely
obstructing police duty by pushing aside the barricades set up by the police pursuant to the
law for security purposes and by subsequently unlawfully entering an area that had been
cordoned off by the police. The Government therefore concludes that the aforementioned
facts preclude the case from being argued under category II.
52.
According to the Government, in reference to category V, there is no evidence to
suggest that persons sharing the political opinion of Mr. Mahloof are treated in a
discriminatory manner within the Maldivian judicial system. The political opinions of Mr.
Mahloof were not taken into account during the trial. Furthermore, persons in addition to
Mr. Mahloof were charged, convicted and subsequently sentenced for obstruction of police
duty.
53.
The Government rejects the allegations that Mr. Mahloof had been subject to
politically motivated harassment in the past, noting that his summons by the police on 7 and
12 February 2016 was carried out following a complaint that he had made allegations
regarding money in the bank account of the current President and his wife. The police
subsequently filed this complaint, as there was no evidence that Mr. Mahloof had
committed any offence. Mr. Mahloof was arrested on 11 March 2016 for disobeying police
orders and obstructing police duty during a public rally, as he assisted a person who had
pushed and assaulted a police officer. He also attempted to flee from the police. Mr.
Mahloof was released on 18 March 2016. The Prosecutor General decided not to file
charges after reviewing the case.
54.
The Government also maintains that the detention of Mr. Mahloof does not fulfil the
criteria under category III. The existence of due process violations does not necessarily
render detention arbitrary, provided that the defendant is punished in accordance with
domestic law in a process in which he or she was assisted by a lawyer. The Government
refers to the “double threshold”, in that to render detention arbitrary, there must first have
been a violation of due process rights and thereafter that the violation must be of sufficient
importance to declare the entire process null and void.
55.
Mr. Mahloof knew of the existence of both cases against him and had legal
representation of his choosing. Following statements made by Mr. Mahloof’s lawyers at a
press conference on 25 July 2016, the criminal court barred one of them for attempting to
unduly influence the outcome of the case by using public media. However, barring one
lawyer from the second case did not result in a violation of the right to have access to legal
counsel.
56.
Mr. Mahloof was given ample opportunity and time to prepare for his defence in
relation to the two cases against him. He had 11 days between being informed of the charge
in the first case and the subsequent trial hearing on 23 February 2016, and 7 days between
being informed of the charge in the second case and the subsequent trial hearing on 3 May
2016. Those periods could be considered sufficient for the preparation of a defence and not
necessarily inconsistent with international standards, particularly with article 14 (3) (b) of
the Covenant. There is no internationally predetermined time frame that could serve as a
reference to assess whether the legal team was granted adequate time to prepare its case. It
generally depends on the nature of the proceedings and on the particular characteristics of
the case, including its complexity. Moreover, Mr. Mahloof had the ability to seek to
challenge the rulings of the court and has already availed himself of that opportunity.
57.
With regard to the allegations that Mr. Mahloof was refused the right to present
defence witnesses during his second case hearing and that this was a violation of article 14
(3) (e) of the Covenant, the Government observes that the right to present witnesses is
subject to limitations that seek to balance it with the need to reach a judgment “without
undue delay”. The court ruled that the proposed witnesses would not be allowed to testify
because it is the responsibility of the prosecutor to provide witnesses to prove the charge
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9
against the defendant. It is neither the responsibility of the defendant nor a general principle
for the defendant to prove his innocence. The court also found that the proposed witnesses
at the trial proceedings were not the ones proposed during the investigation stage.
Furthermore, the court ruled that it was not acceptable to take witness statements from
persons who were charged with offences relating to the same incident as that of the
accused. Despite this, the court did not prevent Mr. Mahloof from requesting that additional
witnesses be called. However, he failed to do so.
58.
The Government rejects the allegation that the evidence relied on by the criminal
court failed to meet the offence liability prescribed in chapter 20 of the Penal Code. It
submits that the evidentiary standard is in accordance with the rules of evidentiary
requirements under Maldivian law.
59.
Except for the verdict hearing in the first case, which was held on 18 July 2016 as a
closed hearing, all trial hearings of the first case and all hearings of the second case,
including the trial hearings and the verdict hearing, were held as public hearings and
journalists, media and the public were allowed to enter the court.
60.
Mr. Mahloof failed to provide an explanation for the allegation that there was a
failure to provide an independent and impartial tribunal.
61.
The Government rebuts the allegation that Mr. Mahloof was held in solitary
confinement and had limited interaction with his family and legal team, amounting to a
violation of the right to due process. It notes that this particular allegation is factually
groundless and may exceed the material or substantial mandate of the Working Group.
Discussion
62.
The Working Group is grateful to both the source and the Government for their
extensive submissions in relation to Mr. Mahloof’s legal proceedings. It will proceed to
consider in turn each of the categories that the source has alleged apply to the detention of
Mr. Mahloof, 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.1
63.
The source firstly argues that Mr. Mahloof’s detention is arbitrary within category I.
Mr. Mahloof was sentenced on the basis of Law 9/2014 (the Penal Code), which came into
force on 16 July 2015. Given that the alleged offence was committed by Mr. Mahloof prior
to this law coming into effect, the source contends that article 59 of the Constitution
entitled him to a lesser punishment, as the punishment in the new Penal Code was lesser (a
maximum term of imprisonment of 4 months and 24 days) than that under the police act (a
maximum term of imprisonment of 6 months). The Government argues that Mr. Mahloof
was given the lesser punishment, as required by the Constitution, as he was sentenced to 4
months and 24 days.
64.
The source goes on to argue that in accordance with section 1005 of the Penal Code
(the punishment method equivalency table), the sentence of imprisonment could have been
converted into a fine, which did not happen. Since Mr. Mahloof was sentenced to 4 months
and 24 days of imprisonment, the source argues that this deprivation of liberty is arbitrary
and falls under category I as lacking a legal basis.
65.
The Government disputes the premise of this argument, noting that the
determination of the applicable punishment rests with the judge, who enjoys discretion to
determine the proper and meaningful form of punishment in individual cases. The
Government contends that Mr. Mahloof was convicted by a Maldivian court and in
accordance with Maldivian law and therefore it is impossible to argue that it falls under
category I.
66.
The Working Group considers that it is entitled to assess the proceedings of the
court and the law itself to determine whether they meet international standards.2 However,
1 See opinions No. 40/2005 and No. 59/2016.
2 See opinion No. 33/2015, para. 80.
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10
the Working Group also reiterates that it has consistently refrained from taking the place of
the national judicial authorities or acting as a kind of supranational tribunal when it is urged
to review the application of domestic law by the judiciary.3
67.
In the present case, therefore, it falls to the Working Group to ascertain whether
there was a legal basis for authorizing the detention of Mr. Mahloof and the Working
Group is unable to conclude that there was not. Both the Penal Code and the police act
include provisions for the crime for which Mr. Mahloof was arrested, with which he was
charged and for which he was subsequently sentenced, and there have been no allegations
made that these are vague or lacking in legal certainty. The sentence imposed upon him of 4
months and 24 days is the lesser of the two possible prison terms and therefore cannot be
said to contradict either article 56 of the Constitution of Maldives or article 15 of the
Covenant. Whether indeed Mr. Mahloof deserved the maximum prison sentence or whether
his sentence should have been converted to a fine, is not for the Working Group to assess,
as otherwise it would be taking on the role of the national courts. The Working Group
therefore concludes that the arrest and subsequent deprivation of liberty of Mr. Mahloof do
not fall within category I of the arbitrary detention categories referred to by the Working
Group when considering cases submitted to it.
68.
The source further argues that Mr. Mahloof’s detention falls within category II, as
his detention resulted from the exercise of his fundamental rights to freedom of opinion and
expression, freedom of association and freedom of political participation. The Government
contests these submissions, arguing that in both instances Mr. Mahloof committed
individual criminal acts and neither of the two cases relate to the exercise of his human
rights by Mr. Mahloof.
69.
The Working Group notes that over the past years it has considered a number of
cases from Maldives, which concern individuals expressing opinions that are not in line
with those of the ruling political establishment.4 In the present case, the Working Group
notes that Mr. Mahloof allegedly breached police barriers, but even the Government does
not contend that the actions of Mr. Mahloof were violent or led to further violence by
others. The Government has only submitted that his actions breached the law and that this
in itself meant that his actions were no longer peaceful.
70.
The Working Group struggles to accept the line of argumentation proposed by the
Government, since merely crossing police barriers does not necessarily mean that the
actions of Mr. Mahloof were no longer peaceful. The Working Group notes that the capital
of Maldives is not geographically large. The extensive exclusion zone enforced in the
capital, the so-called green zone, effectively precludes the general public from approaching
the area where most government offices, including the residence of the current President,
are located.
71.
While it is understandable that there would be restrictions on free movement
imposed in areas where key government offices are located, it is also understandable and
indeed expected that this would be the prime area where individuals would gather to
express their political opinions. The authorities, therefore, need to strike a fair balance
between the need to preserve the security and safety of government offices and the right of
individuals to express political opinions. The Working Group accepts that political rallies
would be expected to occur in such places as the green zone and it would be expected that a
breach of police barriers would occur, especially noting the geographical specifics of the
capital. The Working Group doubts whether it would be necessary and indeed proportionate
to arrest every person who breaches the barriers, provided that their actions are not violent.
In the view of the Working Group, a mere breach of barriers in such a place as Male’,
without any violence, cannot be said to render such an expression of political opinions as
no longer peaceful.
72.
Moreover, the Working Group must take note of the long-standing and active
involvement of Mr. Mahloof in Maldivian politics. It is also notable that according to
3 See opinion No. 40/2005.
4 See opinions No. 33/2015 and No. 59/2016.
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11
article 73 (c) (2) of the Constitution, a person is disqualified from standing for election to
the national legislature if that person has been convicted of a criminal offence and is
serving a sentence of more than 12 months. Mr. Mahloof has received two sentences: one
for 4 months and 24 days and the other for 6 months. The cumulative imprisonment time
for these two criminal offences is nearly 11 months, bringing him very close to being
barred from being an elected representative of the Maldivian people in the national
legislature.
73.
Although it is not for the Working Group to assess the evidence that was presented
to the judges in the two cases against Mr. Mahloof, it notes that for one of those offences,
Mr. Mahloof received the harshest possible sentence and a considerable sentence for the
other one. This was despite the fact that his actions were never violent and that he had had
no prior convictions and was in fact a highly respected member of society, representing the
Maldivian people in the legislature as an elected representative. The Government has been
unable to show any other plausible explanation for the imposition of the maximum
penalties for both offences. The Working Group, therefore, concludes that the arrest and
subsequent detention of Mr. Mahloof fall within category II of the arbitrary detention
categories referred to by the Working Group when considering cases submitted to it.
74.
The source also alleges that Mr. Mahloof’s detention is arbitrary and falls within
category III, as he was not allowed to present any defence witnesses in one case, which
represents a violation of the equality of arms principle; that the court hearings and
sentencing were carried out summarily and hastily; that the testimonies against him were
based on hearsay; that he was not afforded a public trial; and that his subsequent
imprisonment was in fact solitary confinement and constituted cruel, inhuman or degrading
treatment or punishment. The Government rebuts all these submissions by noting that there
were no violations of the rights of Mr. Mahloof to a fair trial, or at least these were not of
such gravity as to render the detention of Mr. Mahloof arbitrary. To that end, the
Government specifically points to what it calls the double threshold implemented by the
Working Group, whereby there must first be a violation of due process rights and thereafter
it must be of sufficient importance as to declare the entire process null and void.
75.
The Working Group notes the numerous alleged breaches of due process rights
listed by the source. However, it reiterates that it does not fall within its mandate to assess
the sufficiency of the evidence or to deal with errors of law allegedly committed by a
domestic court, unless there is a prima facie breach of international law. The allegations
made by the source that Mr. Mahloof was convicted on the basis of evidence that was
hearsay, or that the judge excluded some of the witnesses presented by the defence, is not
for the Working Group to assess, as it is not in a position to assess the content of all witness
statements.
76.
The Working Group notes that Mr. Mahloof was precluded from calling witnesses to
testify, as the judge had declared that under sharia law and legal principles the prosecution
was required to prove any charges and the defence generally did not need to prove that the
alleged offence had not taken place. The Government argues that the right to call witnesses
is not an absolute right and that the court has an inherent discretion to hear evidence that is
relevant to the proceedings and to refuse to hear witnesses who are not capable of providing
evidence that goes to a relevant matter at issue.
77.
It is true that the right to call witnesses is not an absolute right. However, as the
Human Rights Committee stated in its general comment No. 32 (2007) on the right to
equality before courts and tribunals and to a fair trial, there is a strict obligation to respect
the “right to have witnesses admitted that are relevant for the defence, and to be given a
proper opportunity to question and challenge witnesses against them at some stage of the
proceedings” (para. 39). In the present case, the request by Mr. Mahloof’s lawyer to call
witnesses was denied and such a blanket refusal to allow any witnesses to be called on
behalf of the defence bears the hallmarks of a serious denial of equality of arms in the
proceedings and is in fact a violation of article 14 (3) (e) of the Covenant.
78.
Moreover, the Working Group is particularly concerned about the fact that Mr.
Mahloof actually did not receive a public trial, as on 18 July 2016 he was summoned to a
closed hearing and summarily convicted. As the Human Rights Committee stated in its
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12
general comment No. 32: “Article 14, paragraph 1, acknowledges that courts have the
power to exclude all or part of the public for reasons of morals, public order (ordre public)
or national security in a democratic society, or when the interest of the private lives of the
parties so requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would be prejudicial to the interests of justice. Apart from
such exceptional circumstances, a hearing must be open to the general public, including
members of the media, and must not, for instance, be limited to a particular category of
persons.”
79.
The case of Mr. Mahloof clearly did not fall into any of the prescribed exceptions to
the general obligation to hold public trials under article 14 (1) of the Covenant. The
Working Group notes the submission made by the Government that it was only the hearing
on 18 July 2016 which was held behind closed doors. However, the Government has
provided no legitimate explanation as to why the final hearing on 18 July 2016 was closed.
The Working Group notes that the right to a public hearing extends to the whole duration of
the proceedings and is especially important for the conclusion of a trial, as it is at this stage
that justice is seen to be done. To conclude a trial behind closed doors is to undermine the
transparency of the whole hearing and constitutes a violation of article 14 (1) of the
Covenant.
80.
The source also alleges that Mr. Mahloof’s lawyer was barred from the proceedings
on 25 July 2016, when Mr. Mahloof was convicted for obstruction of police barriers and
sentenced to a further six months’ imprisonment. The source also alleges that the right of
Mr. Mahloof to adequate time to prepare a defence was violated, as on 18 July 2016 when
Mr. Mahloof was summarily sentenced in a closed hearing to a prison term of 4 months and
24 days, a hearing regarding his other conviction also took place. During that hearing, the
judge announced that the concluding statements would be made the following day and the
trial concluded on 25 July 2016, when Mr. Mahloof was sentenced to a prison term of six
months at a hearing which his lawyer was not permitted to attend.
81.
The Government argues that throughout both proceedings Mr. Mahloof had the
benefit of legal representation of his own choice and that his lawyers were kept continually
informed from the initial stages of the investigations of both cases. The Working Group,
however, notes that there is a significant difference between being informed of the
proceedings and being afforded sufficient time to prepare a defence. The defence team was
given one day’s notice to prepare the concluding statements and were barred from the final
hearing on 25 July 2016. While there is no set time period prescribed by international law
as to what constitutes “adequate” time to prepare a defence, the Working Group also notes
that this generally depends on the nature of the proceedings and on the particular
characteristics of the case, including its complexity.
82.
In the present case, Mr. Mahloof had just been sentenced for one crime and on the
same day he and his legal team were informed that the concluding statements in the other
case would be heard the following day. That gave Mr. Mahloof and his lawyer a maximum
of 24 hours to prepare the final statement. The Working Group notes that the case involved
a member of the national legislature as the accused, which necessarily attracted a high level
of public interest and had political undertones. To allow the defence a mere 24 hours to
prepare the final statement in such circumstances is to ignore the nature of the proceedings
and the specific characteristics of the case. Moreover, the Government has presented no
legitimate reasons for such an extremely short notice period. The source has also noted
what it describes as the “unusual hastiness” with which the case regarding the obstruction
of the police barriers suddenly proceeded in June and July 2016, and the Government has
not provided any explanation as to what caused the case to proceed with such expediency.
That also had an impact upon the ability of the defence team to prepare adequately for the
overall proceedings, which unexpectedly and unusually had picked up speed. The Working
Group therefore concludes that there has also been a violation of article 14 (3) (b) of the
Covenant.
83.
As for the source’s allegation that Mr. Mahloof was denied legal representation
when his lawyer was barred from the proceedings on 25 July 2016, during which the
concluding arguments were presented, the Working Group notes that the Government
contests this fact. According to the submissions made by the Government, only one of his
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13
lawyers was barred from the proceedings owing to his statements to the media about the
two cases. Mr. Mahloof’s other lawyer was allowed to be present, but did not attend.
84.
The Working Group notes that the right to a lawyer is the cornerstone of the rights to
due process, especially in criminal proceedings, as stipulated by the United Nations Basic
Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of
their Liberty to Bring Proceedings Before a Court (principle 9). It is essential for the proper
adherence to the principle of equality of arms and presumption of innocence.
85.
In the present case, it appears to the Working Group that Mr. Mahloof was afforded
the right to legal representation, except at the contested hearing on 25 July 2016. It is
indeed entirely possible for a court to bar a lawyer from proceedings for conduct
incompatible with the proper administration of justice, a point which the Working Group is
not examining in the present case. However, this cannot mean that the defendant remains
without legal representation. In the present case, one of the lawyers of Mr. Mahloof was
barred and the other lawyer failed to appear at the hearing, leaving Mr. Mahloof without
any legal representation at the concluding hearing of his trial, when he was sentenced to six
months’ imprisonment. The Government presented no explanation of the efforts that were
undertaken to bring Mr. Mahloof’s other lawyer to the hearing, or indeed why the hearing
could not have been adjourned to allow the requisite legal representation or ensure that he
had legal aid. In fact, it appears that the court simply did nothing to preserve the right of
Mr. Mahloof to legal representation. The Working Group therefore concludes that there has
been a violation of article 14 (3) (d) of the Covenant.
86.
The source has suggested that Mr. Mahloof was not tried by an independent and
impartial tribunal, but has not provided any details regarding this allegation. The Working
Group is therefore unable to make any comments on the issue.
87.
The source also alleges that the subsequent holding of Mr. Mahloof in solitary
confinement is tantamount to cruel, inhuman or degrading treatment or punishment, which
bears absolute prohibition in international law. The Government disputes the allegation by
noting that Mr. Mahloof was not held in solitary confinement, but in a single cell, and that
he has was not subjected to the stringent regime applicable to those in solitary confinement.
Mr. Mahloof has been allowed contact with his lawyers and family and he has been allowed
medical treatment abroad. The Government has even submitted visual evidence of Mr.
Mahloof’s cell and a list of his contacts with family and lawyers.
88.
The Working Group is grateful to the Government for the detailed information about
the allegations made. However, it does appear to the Working Group that aside from
contacts with his lawyers and family, on the frequency of which the source and the
Government disagree, Mr. Mahloof has no interaction with any other detainees. By the
Government’s own admission, all but one of the cells adjacent to Mr. Mahloof’s cell are
unoccupied. The Working Group therefore concludes that as a minimum, Mr. Mahloof is
isolated from the general prison population which, according to rule 37 of the Standard
Minimum Rules for the Treatment of Prisoners, is a form of punishment and must therefore
be subject to appropriate legal safeguards and regular review. The Working Group has no
information as to whether the safeguards have been observed or if there has been a review
of Mr. Mahloof’s isolation.
89.
Moreover, although the mandate of the Working Group does not cover conditions of
detention or the treatment of prisoners per se, it must consider to what extent detention
conditions can negatively affect the ability of detainees to prepare their defence and their
chances of a fair trial.5 In the present case, the source has argued that the conditions of
detention of Mr. Mahloof are aimed at inflicting pain and breaking his spirit to fight the
wrongful conviction. However, the source has not shown that there are adverse effects upon
the ability of Mr. Mahloof to challenge his convictions. The Working Group is therefore
unable to establish convincingly that his detention in such isolated conditions has had an
impact upon his chances for a fair trial. The Working Group wishes to place on record its
concern for the isolated conditions of detention of Mr. Mahloof and refers the present case
5 See E/CN.4/2004/3/Add.3, para. 33, and opinion No. 1/2017.
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14
to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment for further consideration.
90.
As noted by the Government, not every irregularity regarding the observance of due
process rights renders the subsequent detention of the person in question arbitrary under
category III. Indeed, as is stated in para. 8 (c) of the Working Group’s methods of work, to
fall within category III, the denial of due process rights must be of such gravity as to give
the deprivation of liberty an arbitrary character. The Government contends that the present
case does not satisfy this high threshold. However, the Working Group is concerned that
although Mr. Mahloof was allowed legal representation, this did not extend to the entirety
of the proceedings against him and he was in fact sentenced without his lawyer being
present. The Government has presented no explanation as to why the hearing could not
have been postponed to allow legal representation to be available. Mr. Mahloof’s lawyers
were given only 24 hours to present the final submissions in one case and Mr. Mahloof was
not allowed to present any witnesses in his defence in the other case. The Working Group
notes that these violations seriously affected the observance of the principle of equality of
arms. In addition, in one case Mr. Mahloof was denied a public hearing without any legal
justification being invoked. The Working Group therefore concludes that all such violations
of due process rights are of such gravity that the detention of Mr. Mahloof falls within
category III of the arbitrary detention categories referred to by the Working Group when
considering cases submitted to it.
91.
The fourth submission from the source is that the detention of Mr. Mahloof falls
within category V, as his detention is discriminatory on the basis of his political opinions.
The Government contests this allegation, noting that Mr. Mahloof was convicted for
individual criminal acts and not because of his political or other views.
92.
The Working Group has already established that the detention of Mr. Mahloof
resulted from his exercise of his right to freedom of expression and assembly. The Working
Group also notes that Mr. Mahloof was summoned by the police on two further occasions
for questioning over allegations he had made about the President’s involvement in a corrupt
scheme and that he was arrested for participating in an anti-corruption rally. The
Government does not dispute these facts, but emphasizes that Mr. Mahloof was only
questioned upon the receipt of complaints by the police and promptly released. In relation
to the two criminal offences with which Mr. Mahloof was charged, the Government also
argues that there is no discriminatory attitude towards Mr. Mahloof, since others who
similarly obstructed police duty in the same incident were also charged, convicted and
sentenced for obstruction of police duty.
93.
The Working Group considers that the instances of Mr. Mahloof being summoned
for questioning and arrested for participation in the anti-corruption rally, coupled with the
two criminal charges that lie at the heart of the present case, are very indicative of the
attitude of the authorities towards Mr. Mahloof. His political views are clearly at the centre
of the present case and the Working Group cannot help but notice that the authorities have
displayed an attitude towards Mr. Mahloof, which can only be characterized as
discriminatory. In reaching that conclusion, the Working Group takes special note that Mr.
Mahloof is an elected member of the parliament, a position which necessarily attracts
respect. All of his convictions are directly linked to his expression of his political views and
all his interactions with the police in terms of being arrested and summoned for questioning
have also been directly linked to his political views. The two prison terms to which he has
been sentenced bring him very close to being barred from standing in the forthcoming
elections. The Working Group is mindful that this is not the first case it has considered that
has involved persons in Maldives who have expressed views that are different to those of
the governing political establishment.6
94.
The Working Group is, therefore, convinced that Mr. Mahloof did not receive equal
protection before the national law on the basis of his political views and concludes that the
detention of Mr. Mahloof falls within category V of the arbitrary detention categories
referred to by the Working Group when considering cases submitted to it.
6 See opinion No. 33/2015.
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15
95.
Finally, the Working Group would welcome the opportunity to conduct a country
visit to Maldives, so that it can engage with the Government constructively and offer
assistance in addressing its serious concerns relating to the arbitrary deprivation of liberty.
The Working Group notes that Maldives have issued a standing invitation to all special
procedure mandate holders and looks forward to an invitation to visit the country.
Disposition
96.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Ahmed Mahloof, being in contravention of articles 7, 9,
10, 19, 20 and 21 of the Universal Declaration of Human Rights and of articles 3 (b),
(d) and (e), 14 (1), 19, 22, 25 and 26 of the International Covenant on Civil and
Political Rights, is arbitrary and falls within categories II, III and V.
97.
The Working Group requests the Government of Maldives to take the steps
necessary to remedy the situation of Ahmed Mahloof without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights.
98.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ahmed Mahloof immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
99.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers this case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment.
Follow-up procedure
100.
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. Mahloof has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Mahloof;
(c)
Whether an investigation has been conducted into the violation of Mr.
Mahloof’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 Maldives with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
101.
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.
102.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
103.
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
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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.7
[Adopted on 21 April 2017]
7 See Human Rights Council resolution 33/30, paras. 3 and 7.