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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2
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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3
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
5
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.