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A/HRC/WGAD/2017/20

Opinion no. 20/2017 concerning Musallam Mohamed Hamad al-Barrak (Kuwait)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2017-04-28 · en UN

Opinion; Subjects: KUWAIT, 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.17-12097(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. 20/2017 concerning Musallam Mohamed Hamad al-

Barrak (Kuwait)

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 24 June 2016 the

Working Group transmitted a communication to the Government of Kuwait concerning

Musallam Mohamed Hamad al-Barrak. The Government replied to the communication on

16 and 19 August 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);

(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/2017/20

General Assembly

Distr.: General

18 July 2017

Original: English

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Submissions

Communication from the source

4.

Musallam Mohamed Hamad Al-Barrak, born on 30 January 1956, is a citizen of

Kuwait. He was a member of the Kuwaiti National Assembly from 1996 to 2012. Mr. Al-

Barrak is a widely known and respected political figure from the opposition, who on many

occasions has spoken out against the violations of civil and political rights committed by

the Kuwaiti authorities. During his time as a parliamentarian, he publicly condemned the

practice of torture committed by governmental forces.

5.

According to the information received, on 20 June 2012, the National Assembly of

Kuwait was dissolved by a decision of the Constitutional Court in accordance with the

orders of the Emir. The source claims that the dissolution of the National Assembly

happened after the opposition to the existing Government, composed of the majority of

elected members of parliament, including Mr. Al-Barrak, called for new democratic

reforms, following several corruption scandals, which reportedly involved individuals close

to the Emir.

6.

The source claims that in this political context, Mr. Al-Barrak defended the human

rights of all individuals subjected to arbitrary decisions, both within the National Assembly

and in the media. As a parliamentarian, he marked his political life by courageously

speaking up, without discrimination, for victims of human rights violations. Notably, in the

institutional and public forums, he condemned the use of torture and asked for proper

investigations and for those responsible to be held accountable.

7.

Reportedly, during a conference that took place at Al-Erada Square in October 2012,

Mr. Al-Barrak delivered a speech criticizing the arbitrariness of the Emir’s policies and

decisions, which had resulted in restrictions on political and civil rights, and denounced the

effects of the new draconian electoral law reform.

8.

On 29 October 2012, as a direct consequence of his speech, Mr. Al-Barrak was

arrested. While he was released on bail four days later, criminal proceedings against him

continued. On 15 April 2013, he was found guilty of violating article 25 of Act No. 31 of

1970 amending various provisions of the Criminal Code, which prohibits any public

expression that disrespects the Emir, challenges his rights or authority or commits lese-

majesty, and thereby was sentenced to five years in prison by the court of first instance.

However, he remained on bail pending his appeal.

9.

On 22 February 2015, the Court of Appeal upheld the decision, while reducing his

sentence to two years’ imprisonment. On 1 March 2015, Mr. Al-Barrak was arrested by

police officers carrying out the criminal court’s decision for him to be held in the Central

Prison of Kuwait. On 20 April 2015, he was released pending his appeal before the Court of

Cassation.

10.

On 18 May 2015, the Court of Cassation decided to uphold the decision of the Court

of Appeal. This last decision is final and cannot be appealed. On 13 June 2015, Mr. Al-

Barrak was arrested by the State security forces and detained in the Central Prison to serve

his sentence.

11.

In the light of the aforementioned information, the source claims that this case meets

the requirements of category I of the Working Group’s classifications of deprivations of

liberty, because there is no legal basis, in view of the international obligations of Kuwait,

justifying Mr. Al-Barrak’s deprivation of liberty. In that regard, the source submits that Mr.

Al-Barrak was charged and convicted pursuant to article 25 of Act No. 31, which provides

for a prison term, not exceeding five years, for anyone who publicly or in a public place, or

in a place where he or she can be heard or seen while being in a public place, through

speech, writing, drawing or displaying pictures, or by any other means of expression of

thought, challenges the rights or the authority of the Emir, commits lese-majesty or

disrespects the Emir.

12.

Based on the above, the source claims that article 25 of Act No. 31, which was used

by the Kuwaiti authorities as the legal basis for the deprivation of Mr. Al-Barrak’s liberty,

cannot be considered as legitimate, because it is not in accordance with the international

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obligations of Kuwait as regards human rights. The source argues that, as a party to the

Covenant, Kuwait has an international obligation to comply with its provisions. By

criminalizing any criticism against the Emir through article 25 of Act No. 31, Kuwait is in

clear violation of the Covenant and, therefore, this provision cannot be considered as a

valid legal basis for the deprivation of Mr. Al-Barrak’s liberty.

13.

Also, the source claims that this case meets the requirements of category II of the

Working Group’s classifications of deprivations of liberty, because the deprivation of Mr.

Al-Barrak’s liberty resulted from the legitimate exercise of his right to freedom of

expression. The source claims that he was sentenced to two years in prison for conduct that

falls under the protection of the right to freedom of opinion and expression.

14.

In this regard, the source provides the following quote of the essential parts of Mr.

Al-Barrak’s speech, which he delivered at Al-Erada Square in October 2012:

In the name of the nation, in the name of the people, we will not allow you, your

highness, to take Kuwait into the abyss of autocracy. Your highness, some of your

advisers have business interests and some of them have a deep hatred of democracy

and the people of your nation. When the history books present your reign, how do

you want them to describe you? Do you want them to say that you, Sheikh Sabah al-

Ahmad al-Sabah, threw in jail anyone who dared to have an opinion? Do you want

history to write that people were beaten; do you want history to write that during the

era of Sheikh Sabah al-Ahmad, Kuwait’s wealth was looted? Do you want history to

write that during your era people’s rights were violated and the constitution

undermined?

15.

The source submits that this quote mirrors the content of Mr. Al-Barrak’s entire

speech delivered during that event. According to the source, it is clear that, while Mr. Al-

Barrak expressed criticism against the decisions taken by the Emir, he did not call for

violence or hate, but instead was peacefully requesting the Emir to put an end to what he

considered an abuse of power.

16.

Finally, the source argues that the deprivation of Mr. Al-Barrak’s liberty was used

by the Government to prevent him from engaging in politics by keeping him away from

public debate and ultimately preventing him from presenting himself as a candidate in the

next parliamentary elections, which should take place in 2017. Therefore, the source asserts

that the Kuwaiti authorities are also in violation of article 25 of the Covenant, which

recognizes and protects the right of every citizen to take part in the conduct of public

affairs, the right to vote and to be elected and the right to have access to public service.1

Response from the Government

17.

On 24 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 24 August 2016, about the current situation of Mr. Al-

Barrak and any comment on the source’s allegations. The Working Group also requested

the Government to clarify the factual and legal grounds invoked by the authorities to justify

his arrest and continued detention, and to provide the details regarding the conformity of

the relevant legal provisions and proceedings with international law, in particular the norms

of international human rights treaties that Kuwait has ratified. Moreover, the Working

Group called upon the Government to ensure Mr. Al-Barrak’s physical and mental

integrity.

18.

On 28 June 2016, the Government acknowledged receipt of the Working Group’s

request and assured it that its reply would be submitted within the time limit. On 16 August

2016, the Permanent Mission of Kuwait to the United Nations Office and other

international organizations in Geneva submitted its initial response, specifying that a more

detailed and exhaustive reply would be forwarded as soon as it became available. On 19

1 See Human Rights Committee, general comment No. 25 (1996) on participation in public affairs and

the right to vote), para. 24.

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August 2016, the Permanent Mission of Kuwait added the reply of the Attorney General of

the Office of Public Prosecution.

19.

According to the Government’s reply, Mr. Al-Barrak was convicted, in State

security case No. 15 on 15 October 2012, for having committed the crime of openly

challenging in a public place the rights and authority of the Emir, defaming his person and

disparaging the basis on which he holds office at a public assembly. The Criminal Court

decided, at a hearing on 15 April 2013, to sentence him to five years’ imprisonment with

hard labour and without a stay of execution. The Court of Appeal then decided, at a hearing

on 22 February 2015, to amend the judgment and to sentence him to two years’

imprisonment with hard labour and without a stay of execution. The Court of Cassation

upheld the judgment at a hearing on 18 May 2015 in a final enforceable judgment.

20.

The Government states that the accused was convicted of committing a crime

pursuant to article 25 of Act No. 31, which provides for a prison term, not exceeding five

years, for anyone who publicly or in a public place, or in a place where he or she can be

heard or seen while being in a public place, through speech, writing, drawing or displaying

pictures, or by any other means of expression of thought, challenges the rights or the

authority of the Emir, commits lese-majesty or disrespects the Emir.

21.

The Government contends that there can be no doubt that the accused was convicted

of the offence that he perpetrated on 15 October 2012 after the adoption of article 25 of Act

No. 31, which was promulgated on 21 July 1970. Accordingly, there are no grounds for

finding a violation of article 15 (1) of the Covenant, which prohibits the conviction of a

person for acts committed prior to the enactment of a law.

22.

The Government submits that the provisions of article 25 of Act No. 31 contain no

vague terms but a specific definition of the kinds of speech and acts that are prohibited.

This was confirmed by the Constitutional Court of Kuwait in a judgment handed down on 2

December 2013, which rejected criticism of the provisions of the article on the ground that

the terms used were extremely general and had no clear-cut import or specific meaning.

According to the Government, the Constitutional Court concluded, with a view to

protecting the principles that guarantee the unity of the nation and the internal security of

the country, preventing any harm to the nation and the destruction of the regime, and

ensuring that it is treated with veneration and respect, and in the light of the guarantees of

personal freedom enshrined in the Constitution, that the criminalization of acts that

challenge the rights and authority of the Emir, that defame his person and that disparage the

basis on which he holds office does not constitute a violation of freedom of opinion and

expression, since it does not penalize reflection and the formation of opinions but penalizes

views that are contrary to the law and the public dissemination of those views in any of the

ways listed exhaustively in the provisions of the article.

23.

The Government submits that the speech that Mr. Al-Barrak gave in October 2012,

at Al-Erada Square, fell within the scope of article 19 (3) of the Covenant, outlining the

restrictions to freedom of expression, namely: (a) respect of the rights or reputations of

others; and (b) protection of national security or of public order, or of public health or

morals.

Further comments from the source

24.

The reply from the Government of Kuwait was transmitted to the source on 17

August 2016. The source responded on 19 August 2016.

25.

The source recalls the recommendations made by the Human Rights Committee

after its recent review of the obligations of Kuwait under the Covenant, in particular in

relation to the right to freedom of opinion and expression. The Committee expressed its

concern over the criminalization of defamation and prosecution of individuals expressing

critical views or views deemed to “insult” the Emir or undermine his authority or threaten

the national security of Kuwait. Hence, the Committee urged the State to:

(a)

Repeal or revise laws containing provisions restricting the right to freedom of

expression and opinion and repeal laws criminalizing blasphemy and insulting the

A/HRC/WGAD/2017/20

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Emir, among other acts, with a view to bringing them into conformity with its

obligations under the Covenant;

(b)

Clarify the vague, broad and open-ended definition of key terms in those

laws and ensure that they are not used as tools to curtail freedom of expression

beyond the narrow restrictions permitted by article 19 (3) of the Covenant (see

CCPR/C/KWT/CO/3, para. 41).

26.

The source notes that the Government argued that the speech that Mr. Al-Barrak

gave in October 2012, at Al-Erada Square, fell within the scope of article 19 (3) of the

Covenant, outlining the restrictions to freedom of expression. The source also mentions that

the Government elaborated its argument by stating that Mr. Al-Barrak had accused certain

individuals and members of parliament of corruption and theft. In that context, the source

recalls that there was indeed a major corruption scandal that surfaced in Kuwait in 2012,

involving bribes and funds allegedly transferred to members of parliament in return for

voting along government lines. According to the source, this was denounced not only by

Mr. Al-Barrak, but was widely discussed by civil society, national and international press

and human rights organizations. Therefore, the statements made by Mr. Al-Barrak did not

constitute a personal attack or slander of the reputation of private individuals falling under

the restrictions of article 19 (3) of the Covenant, but ought to be deemed a contribution to

the discussion on the misconduct of certain members of parliament and public figures.

27.

The source notes that, additionally, the information conveyed in a speech, whether

true or false, could hardly threaten to national security and stability. Hence, the source

argues that sentencing Mr. Al-Barrak to two years in prison under Act No. 31 did not fall

under the limits of article 19 (3) of the Covenant.

28.

Lastly, the source recalls the Government’s claim that Mr. Al-Barrak’s speech also

included a direct call and incitement to chaos and violence, quoting the expression “face the

oppressive power” in his speech. In this context, the source states that the expression in no

way constitutes a call for violence, but rather represents an appeal to the citizens to

peacefully claim their political rights and demand a fair, reliable and representative

government.

29.

In the light of the above information, the source reiterates that Mr. Al-Barrak was

currently arbitrarily detained according to categories I and II of the categories applicable to

the consideration of cases submitted to the Working Group.

Discussion

30.

The Working Group thanks the source and the Government for their extensive

engagement and for their submissions in relation to Mr. Al-Barrak’s arrest, conviction and

imprisonment.

31.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case of breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest with the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68).

32.

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.2

33.

The Working Group notes that Mr. Al-Barrak was previously the subject of a joint

letter of allegations sent by the Special Rapporteur on the promotion and protection of the

right to freedom of opinion and expression and the Special Rapporteur on the rights to

2 See Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits,

Judgment, I.C.J. Reports 2010, p. 639, at pp. 660-661, para. 55; opinion No. 41/2013, para. 27; and

opinion No. 59/2016, para. 61.

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freedom of peaceful assembly and of association on 13 August 2015.3 The Working Group

acknowledges the Government’s response to that communication received on 14 September

2015.

34.

The Working Group will first consider whether Mr. Al-Barrak’s arrest, trial and

imprisonment, for his alleged violation of article 25 of Act No. 31, through his speech of 15

October 2012 at Al-Erada Square, is arbitrary and falls within category I.

35.

The Working Group is concerned that Act No. 31 might allow an excessively broad

interpretation of its provisions due to their vagueness, thus resulting in unjustified and

arbitrary criminalization of the legitimate exercise of the right to freedom of expression.

However, the Working Group finds it difficult to conclude that Mr. Al-Barrak’s deprivation

of liberty is completely without legal basis so as to fall within category I.

36.

The Working Group will further consider whether Mr. Al-Barrak’s deprivation of

liberty resulted from the legitimate exercise of his rights or freedoms, rendering it arbitrary

and falling within category II.

37.

The Working Group wishes to reaffirm that any national law allowing deprivations

of liberty should be made and implemented in compliance with the relevant international

provisions set forth in the Universal Declaration of Human Rights, the Covenant and other

relevant international legal instruments. Consequently, even if the detention is in

conformity with national legislation, the Working Group must assess whether such

detention is also consistent with the relevant provisions of international human rights law

(see opinion No. 28/2015, para. 41).

38.

The Working Group recalls that holding and expressing opinions, including those

that are not in accordance with official government policy, are protected by article 19 of the

Universal Declaration of Human Rights and article 19 of the Covenant.4 In that regard, the

Human Rights Committee stated, in paragraph 38 of its general comment No. 34 (2011) on

the freedoms of opinion and expression, that:

The mere fact that forms of expression are considered to be insulting to a public

figure is not sufficient to justify the imposition of penalties, albeit public figures

may also benefit from the provisions of the Covenant. Moreover, all public figures,

including those exercising the highest political authority such as heads of state and

government, are legitimately subject to criticism and political opposition.

39.

With regard to Act No. 31, particularly article 25, and its application, the Working

Group is concerned by the lese-majesty nature of the law. The Working Group recalls that

in a previous case of lese-majesty in Kuwait, it found the charge and conviction, under

article 25 of Act No. 31 and article 1 of Law No. 9 of 2001 concerning the misuse of

telecommunication and eavesdropping equipment, in violation of article 19 of the Universal

Declaration of Human Rights and article 19 of the Covenant (see opinion No. 28/2015).

40.

The Working Group also notes that the Human Rights Committee, in its concluding

observations on the third periodic report of Kuwait, explicitly urged the repeal or revision

of “laws containing provisions restricting the right to freedom of expression and opinion

and repeal laws criminalizing blasphemy and insulting the Emir, among other acts, with a

view to bringing them into conformity with its obligations under the Covenant”, and

requested the Government to “clarify the vague, broad and open-ended definition of key

terms” (see CCPR/C/KWT/CO/3, para. 41). The Working Group, mindful of the chilling

effect on the freedom of expression that such vaguely and broadly worded regulations may

have, also concurs with the Human Rights Committee’s assessment, which was previously

cited in a recent opinion in which it found deprivation of liberty to be arbitrary under a

similar legal framework of lese-majesty (see opinion No. 48/2016).

41.

The Working Group notes that the Government, in its response, referred to the

restrictions on the freedom of expression permitted under article 19 (3) of the Covenant, in

3 Reference: AL KWT 5/2015. Available from https://spdb.ohchr.org/hrdb/31st/public_-

_AL_Kuwait_13.08.15_(5.2015).pdf.

4 See also article 32 of the Arab Charter on Human Rights.

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order to justify article 25 of Act No. 31, and Mr. Al-Barrak’s deprivation of liberty.

According to article 19 (3) of the Covenant, freedom of expression may be subject to

restrictions, when provided by law and necessary. Furthermore, article 29 (2) of the

Universal Declaration of Human Rights states that: “In the exercise of his rights and

freedoms, everyone shall be subject only to such limitations as are determined by law solely

for the purpose of securing due recognition and respect for the rights and freedoms of

others and of meeting the just requirements of morality, public order and the general

welfare in a democratic society.”

42.

In this regard, the Working Group has stated, in its deliberation No. 9 concerning the

definition and scope of arbitrary deprivation of liberty under customary international law,

that: “The notion of ‘arbitrary’ stricto sensu includes both the requirement that a particular

form of deprivation of liberty is taken in accordance with the applicable law and procedure

and that it is proportional to the aim sought, reasonable and necessary” (para. 61).

43.

In the present case, the Working Group has been unable to find Mr. Al-Barrak’s

deprivation of liberty for the lese-majesty offence, under article 25 of Act No. 31, and the

criminal provision itself, necessary or proportional for the purposes set out in article 19 (3)

of the Covenant. The Working Group concurs with the assessment of the Human Rights

Committee that all public figures, including those exercising the highest political authority,

such as heads of State and Government, are legitimately subject to criticism and political

opposition (see general comment No. 34 (2011) on the freedoms of opinion and expression,

para. 38). The Working Group also notes the Human Rights Committee’s specific reference

to lese-majesty when stating that “laws should not provide for more severe penalties solely

on the basis of the identity of the person that may have been impugned” (ibid.).

44.

The Working Group also recalls that the Human Rights Council noted that “the right

to freedom of expression includes expression of views and opinions that offend, shock or

disturb” (see A/HRC/17/27, para. 37). In addition, the Working Group wishes to note that

the Special Rapporteur on the promotion and protection of the right to freedom of opinion

and expression stated that:

Protection of national security or countering terrorism cannot be used to justify

restricting the right to expression unless the Government can demonstrate that: (a)

the expression is intended to incite imminent violence; (b) it is likely to incite such

violence; and (c) there is a direct and immediate connection between the expression

and the likelihood or occurrence of such violence (ibid., para. 36).

45.

It is difficult for the Working Group to consider that Mr. Al-Barrak’s speech could

plausibly threaten national security or public order, let alone public health or morals.

Therefore, the Working Group considers that Mr. Al-Barrak’s deprivation of liberty for the

lese-majesty charge related to his speech of 15 October 2012 resulted from the exercise of

the right to freedom of expression guaranteed by article 19 of the Universal Declaration of

Human Rights and article 19 of the Covenant.

46.

Moreover, the Working Group received information that the Government had

revised the electoral law in June 2016 and that this had barred Mr. Al-Barrak, and other

politicians convicted under article 25 of Act No. 31, from competing in the parliamentary

elections. Those allegations indicate that the new law resulted in the loss of parliamentary

seats by certain individuals in the latest elections, held on 26 November 2016, including

Mr. Al-Barrak.

47.

The Government did not refute the claim that, by arresting and prosecuting Mr. Al-

Barrak, it prevented him from running in the elections. Instead, the Government only

asserted that it was enforcing the law. The Working Group therefore considers that

preventing Mr. Al-Barrak from exercising his right to participate in public affairs and to be

elected, under article 21 of the Universal Declaration of Human Rights and article 25 of the

Covenant, has also been a motivation for Mr. Al-Barrak’s imprisonment.

48.

For those reasons, the Working Group is of the opinion that Mr. Al-Barrak’s

deprivation of liberty, under article 25 of Act No. 31, falls within category II of the

categories referred to by the Working Group when considering the cases submitted to it.

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Laws on lese-majesty

49.

The Working Group will elaborate further on the propriety of the lese-majesty law in

view of the principle of legality and its effect on the right to a fair trial. One of the

fundamental guarantees of due process is the principle of legality, including the principle of

nullum crimen sine lege certa, which is particularly relevant in the case of Mr. Al-Barrak.

The principle of legality, in general, ensures that no defendant may be punished arbitrarily

or retroactively by the State. That means that a person cannot be convicted of a crime that

was not publicly accessible; nor can they be charged under a law that is excessively unclear

or convicted under a penal law that is passed retroactively to criminalize a previous act or

omission.

50.

Laws that are vaguely and broadly worded may have a chilling effect on the exercise

of the right to freedom of expression, as they have potential for abuse. They also violate the

principle of legality under article 15 of the Covenant, as it makes it unlikely or impossible

for the accused to have a fair trial. In that regard, the Working Group notes that, as

discussed above, the Human Rights Committee, in its concluding observations on the third

periodic report of Kuwait, urged the Government to “clarify the vague, broad and open-

ended definition of key terms” in the relevant provisions (see CCPR/C/KWT/CO/3, para.

41). Furthermore, the Working Group has found in its case law that detention pursuant to

proceedings that are incompatible with article 15 are necessarily arbitrary within the

meaning of article 9 (1) of the Covenant.5

51.

The Working Group has also expressed its concern that antiterrorism laws “by using

an extremely vague and broad definition of terrorism, bring within their fold the innocent

and the suspect alike and thereby increase the risk of arbitrary detention” with the

consequence that “legitimate democratic opposition … becomes a victim in the application

of such laws” (see E/CN.4/1995/31, para. 25 (d)). Notably, with regard to article 15 (1) of

the Covenant, the prohibition of terrorist conduct must be framed in such a way that: the

law is adequately accessible so that the individual has a proper indication of how the law

limits his or her conduct and the law is formulated with sufficient precision so that the

individual can regulate his or her conduct.6

52.

The concerns expressed with regard to the vague definition of terrorist conduct (see,

e.g., CCPR/CO/81/BEL, para. 24) and other criminal offences, such as organized crime, are

equally pertinent for the alleged acts criminalized by lese-majesty laws. In that respect, the

Working Group notes with concern that article 25 of Act No. 31, which aims to regulate

acts criminalized by lese-majesty laws, contains unclear wording that denies foreseeability

for potential, unsuspecting defendants.

Disposition

53.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Mr. Al-Barrak, being in contravention of articles 9, 11,

19 and 21 of the Universal Declaration of Human Rights and of articles 9, 15, 19

and 25 of the International Covenant on Civil and Political Rights, is arbitrary and

falls within category II.

54.

The Working Group requests the Government of Kuwait to take the steps necessary

to remedy the situation of Mr. Al-Barrak 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.

55.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Al-Barrak immediately and accord

5 Human Rights Committee, communication No. 1629/2007, Fardon v. Australia, Views adopted on 18

March 2010, para. 7.4 (2).

6 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental

freedoms while countering terrorism (E/CN.4/2006/98), para. 46.

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him an enforceable right to compensation and other reparations, in accordance with

international law.

56.

The Working Group urges the Government to bring the relevant legislation,

particularly laws such as Act No. 31, which has been used to restrict the right to freedom of

expression, into conformity with the commitments of Kuwait under international human

rights law.

Follow-up procedure

57.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether Mr. Al-Barrak has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Al-

Barrak;

(c)

Whether an investigation has been conducted into the violation of Mr. Al-

Barrak’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 Kuwait with its international obligations in line with

the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

58.

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.

59.

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.

60.

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.7

[Adopted on 24 April 2017]

7 See Human Rights Council resolution 24/7, paras. 3 and 7.