A/HRC/WGAD/2017/21, Opinion no. 21/2017 concerning Mohamad Ismat Mohamad Shaker...

Opinion; Subjects: UNITED ARAB EMIRATES, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Erwägungen (50 Absätze)

E. 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.

E. 2 In accordance with its methods of work (A/HRC/33/66), on 14 December 2016 the Working Group transmitted to the Government of the United Arab Emirates a communication concerning Mohamad Ismat Mohamad Shaker Az. The Government replied to the communication on 13 February 2017. The State is not a party to the International Covenant on Civil and Political Rights.

E. 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/2017/21 General Assembly Distr.: General 13 July 2017 Original: English A/HRC/WGAD/2017/21 2 Submissions Communication from the source

E. 4 Mohamad Ismat Mohamad Shaker Az, born on 20 February 1977 and citizen of the Syrian Arab Republic, is a computer engineer. He usually resides in Al Dhaid, Al Sharjah, in the United Arab Emirates.

E. 5 Prior to his arrest, Mr. Az had been living in the United Arab Emirates for 12 years. He taught computer science at a public school in Umm al-Quwain. From the start of the conflict in the Syrian Arab Republic, Mr. Az used social media to comment on the unfolding of the Syrian conflict in his hometown of Taftanaz in Idlib.

E. 6 On 26 September 2013, while driving from Al Dhaid to Dubai, Mr. Az was arrested by plain-clothed State security officers. They blindfolded him and took him to his house. They proceeded to search his home for three hours without a warrant and confiscated laptop computers, mobile telephones and money. Reportedly, officers then took Mr. Az to an unknown location, neither providing any reason for his arrest, nor informing him of the charges against him.

E. 7 The source states that, initially, Mr. Az was detained at an unknown location for four months. Throughout this period his family members searched for him. They inquired about his whereabouts at different police stations and State security departments to no avail.

E. 8 During the initial four months of secret detention by the State security forces of Al Ain, Mr. Az was reportedly held in solitary confinement in a small, dark room. He was threatened that he would be killed and that members of his family would be persecuted if he did not confess. Consequently, owing to the psychological pressure that he was subjected to, Mr. Az signed confessions, which he was not allowed to read beforehand, as he was blindfolded. In addition, during the first four months of his detention, Mr. Az was denied access to a lawyer and consequently was interrogated without the presence of legal counsel. Moreover, he was repeatedly denied medical care for his thyroid deficiency.

E. 9 On 12 January 2014, Mr. Az was transferred to Al Wathba prison, where his family was allowed to visit him for the first time. According to the information received, he had lost a considerable amount of weight.

E. 10 In June 2014, Mr. Az was brought before an investigative judge who worked for the public prosecution service. Mr. Az indicated to the judge that while he was held in secret detention, he had been forced to sign confessions without knowing their contents.

E. 11 On 11 August 2014, Mr. Az was officially informed of the charges against him during the first hearing before the State Security Chamber of the Federal Supreme Court, which is the court of first and last instance.

E. 12 On 9 December 2014, Mr. Az was convicted, under articles 5 and 12 of Federal Law No. 1 of 2004 on Combating Terrorism Offences, of belonging to a terrorist organization and collecting and transferring property to be used in full or in part to finance terrorist acts. Mr. Az was also convicted of running and managing a website to further the interests of a terrorist group on the basis of article 26 of Decree Law No. 5 of 2012.

E. 13 During his trial, Mr. Az’s defence counsel insisted that his client denied having any link with any terrorist group and that he had been forced to make confessions under duress, which should therefore be deemed inadmissible. However, when Mr. Az’s lawyer pointed out that he had been interrogated without his counsel being present, the Court replied that the right to legal counsel was only applicable during a trial, in accordance with article 4 of the Code of Criminal Procedure, and did not include the investigative phase. Subsequently, the Court accepted coerced confessions as evidence.

E. 14 On 9 December 2014, Mr. Az was sentenced to 15 years in prison. In the judgment, the Court stated that an evaluation of the veracity and probative value of confessions was “in its hands”. It further stated that if those confessions were later retracted, the Court was the only body competent to decide whether to launch an investigation into claims of coercion. The Court decided that it considered the confessions to be sound and was convinced that they were true. It further stated that the allegations made could not be A/HRC/WGAD/2017/21 3 proven and that nothing in the legal documents corroborated the defendant’s claims of psychological and physical coercion.

E. 15 Mr. Az is currently detained in Al Wathba prison, where he receives two visits a month from his family, lasting 15 minutes each.

E. 16 The source submits that the deprivation of liberty of Mr. Az is arbitrary and falls under categories I and III of the categories defined in the methods of work of the Working Group. With regard to category I, in the view of the source, no legal basis was invoked by the authorities to justify the deprivation of liberty of Mr. Az between the time of his arrest in September 2013 and June 2014, when he first appeared before a judge. Furthermore, the source adds that Mr. Az was held at an unknown location during the first four months of his detention. The authorities failed to inform the family of Mr. Az about his whereabouts during that period. The source argues that the initial four months of secret detention confirms the authorities’ lack of respect for due process and the absence of a legal basis to justify Mr. Az’s arrest and detention. The source thus argues that the detention of Mr. Az between September 2013 and June 2014 has no legal basis and is in violation of article 9 of the Universal Declaration of Human Rights.

E. 17 The source also submits that Mr. Az has not been guaranteed his right to a fair trial throughout his deprivation of liberty, in violation of articles 10 and 11 of the Universal Declaration of Human Rights. The source recalls that: Mr. Az was arrested by plain-clothed State security officers, who did not present an arrest warrant; he was not informed of the reason for his arrest when he was arrested; he was held at an unknown location and in solitary confinement for four months, during which time he was forced to make confessions; he did not have access to a lawyer during this period of time; he was brought before a judge for the first time more than nine months after his arrest; and the Court did not initiate an investigation into the confessions and that they were obtained under duress. In addition, the source submits that Mr. Az was sentenced to 15 years in prison by the State Security Chamber of the Federal Supreme Court, which is the highest judicial instance in the United Arab Emirates and its decisions may not be appealed. Article 33 of Federal Law No. 10 of 1973 concerning the Federal Supreme Court states that the Court has exclusive competence over, inter alia, crimes directly affecting the interests of the Union, such as crimes related to its security at home and abroad. The source argues that the exclusive competence of the Federal Supreme Court over certain criminal cases rules out the possibility of Mr. Az appealing to a higher judicial court. Response from the Government

E. 18 On 14 December 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 about the current situation of Mr. Az and any comment on the source’s allegations by 12 February 2017. The Working Group also requested the Government to clarify the factual and legal grounds justifying his continued detention and to provide details regarding the conformity of the relevant legal provisions and proceedings with international law, in particular the norms of international human rights law, which bind the United Arab Emirates. Moreover, the Working Group called upon the Government to ensure the physical and mental integrity of Mr. Az.

E. 19 In its reply dated 13 February 2017, the Government responded to the Working Group with the information below.

E. 20 According to the Government, Mr. Az was arrested in accordance with the applicable laws of the United Arab Emirates, after being informed of the reasons for his arrest by those who conducted the arrest and search. His family was also informed about the place of his detention in the Emirate of Abu Dhabi. Mr. Az was allowed to contact his family during his detention.

E. 21 On 10 December 2013 and 9 June 2014, Mr. Az was referred to the competent authority, which then referred his case to the Federal Supreme Court. He was charged with: joining a terrorist organization with knowledge of its objectives; convincing people to join a terrorist organization to participate in the conflict in the Syrian Arab Republic; collecting and transferring funds to a terrorist organization; supervising and using social media to A/HRC/WGAD/2017/21 4 disseminate information about Al-Qaida in order to promote its ideas. Mr. Az was allowed to appoint and meet a lawyer.

E. 22 The Government also states that Mr. Az was informed of the charges against him as the Court read them out publicly and, on 9 December 2014, the Federal Supreme Court sentenced him to 15 years of imprisonment, a fine of one million dirhams (approximately $272,000) and ordered his deportation from the State after the execution of his sentence. Mr. Az is currently serving his sentence in the central prison. Further comments from the source

E. 23 In response to the Government’s claim that Mr. Az was able to communicate with his family during his detention, the source states that the Government did not specify at which point in time he was allowed to do so. This information therefore does not contradict the allegation that Mr. Az had been detained incommunicado before being able to contact his family.

E. 24 As for the Government’s argument that Mr. Az was arrested in accordance with national law, the source responds that such law does not require the existence of an arrest warrant, nor does it stipulate that an individual has the right to know the reason for his or her arrest, which clearly contravenes international standards. The source therefore reaffirms that Mr. Az was arrested without being informed of the reason for his arrest and without being presented with a warrant.

E. 25 The source adds that Mr. Az’s place of detention was kept secret from his family and they were repeatedly misinformed by the authorities about the place of his detention.

E. 26 While the Government states that on 10 December 2013 Mr. Az was referred to the competent authority, which on 9 June 2014 transferred his case to the Federal Supreme Court, the source alleges that Mr. Az was first brought before a judicial authority in June

2014. The source argues that, given that the Government did not specify the authority concerned, it cannot be said that Mr. Az was brought before a judicial authority prior to the start of his trial. Furthermore, the Government did not provide information on whether the authority was competent to review the legality of his detention.

E. 27 Finally, the source states that the Government did not deny allegations made with regard to torture, the absence of legal counsel, violation of the exclusionary rule and the nature of the court.

E. 28 The source maintains that Mr. Az’s detention is arbitrary and falls under categories I and III of the categories applicable to cases submitted to the Working Group. Discussion

E. 29 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).

E. 30 The Working Group considers that it is entitled to assess the proceedings of a court and the law itself to determine whether they meet international standards.1 However, the Working Group 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 national law by the judiciary.2

E. 31 The Working Group notes with concern a series of cases in recent years in which the Government of the United Arab Emirates has subjected its citizens and foreign nationals to secret detention or incommunicado detention.3 Such practices of incommunicado detention 1 See opinion No. 33/2015, para. 80. 2 See opinion No. 40/2005. 3 Opinion Nos. 51/2015, 35/2015, 56/2014, 12/2014, 60/2013, 42/2013, 27/2013, 61/2012 and 64/2011. A/HRC/WGAD/2017/21 5 effectively place victims outside the protection of the law and deprive them of any legal safeguards. More specifically, the Working Group has received numerous allegations of the arbitrary deprivation of liberty of foreigners by agents of the State Security Department in the context of the Arab Spring and its aftermath. For example, there are clear similarities between the factual patterns of the present case and those of opinions No. 51/2015, No. 35/2015 and No. 56/2014, in which the Working Group found the deprivation of liberty to be arbitrary.

E. 32 The Working Group considers that States have an obligation to investigate and prosecute the crime of terrorism in accordance with national law and international customary law obligations, which are applicable at all times and in all circumstances.4 However, it recalls the reaffirmation in numerous resolutions of the Security Council, including in its resolution 2170 (2014), of the need to combat threats to international peace and security caused by terrorist acts by all means, in accordance with the Charter of the United Nations and international law, including applicable international human rights, refugee and humanitarian law. The Working Group also emphasizes the fact that effective counter-terrorism measures and respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing.5

E. 33 Furthermore, the Working Group has recognized that where persons who have, or are suspected to have, engaged in the preparation, commission or instigation of acts of terrorism are deprived of their liberty: (a) They shall be immediately informed of the charges against them, and be brought before a competent and independent judicial authority as soon as possible, within a reasonable period of time; (b) They shall enjoy the effective right to judicial determination of the arbitrariness and lawfulness of their detention; (c) The exercise of the right to judicial oversight of their detention shall not impede the obligation of the law enforcement authority responsible for the decision to detain or to maintain the detention to present suspects before a competent and independent judicial authority within a reasonable period of time. Such persons shall be brought before the judicial authority, which will then evaluate the accusations, the justification for the deprivation of liberty and the subsequent judicial process; (d) In the proceedings against them, suspects shall have the right to a fair trial, access to legal counsel and the ability to present exculpatory evidence and arguments under the same conditions as the prosecution, all of which should take place in an adversarial process.6

E. 34 The Working Group also points out that secret or incommunicado detention may put individuals under pressure to confess to a crime and infringe their right not to be compelled to testify against oneself, contrary to article 11 of the Universal Declaration of Human Rights. The conclusions of the 2010 joint study on global practices in relation to secret detention in the context of countering terrorism reiterate that international law clearly prohibits secret detention and that secret detention violates a number of human rights and humanitarian law norms that may not be derogated from under any circumstances.7 Category I

E. 35 The Working Group first determines whether it is clearly impossible to invoke any legal basis justifying Mr. Az’s arrest and detention between September 2013 and June 2014, rendering it arbitrary under category I. 4 See opinion No. 51/2015, para. 58. 5 See 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 (A/HRC/30/37), para. 15. 6 Ibid., para. 93. 7 A/HRC/13/42. A/HRC/WGAD/2017/21 6

E. 36 While the Government states that Mr. Az was arrested in accordance with the law, it has failed to substantiate its statements to refute the source’s prima facie allegations. In the present case, the Government has offered no documentary evidence, such as a copy of the arrest warrant, the case file or the record of court proceedings, which reportedly occurred on 10 December 2013.

E. 37 The Working Group, therefore, accepts arguments presented by the source in this regard. The initial arrest and prolonged detention of Mr. Az by the State Security Department without any plausible legal basis constituted arbitrary arrest and detention, in violation of article 9 of the Universal Declaration of Human Rights and principle 2 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. The deprivation of liberty of Mr. Az, therefore, falls within category I.8 Category II

E. 38 The source argues that Mr. Az’s arrest, trial and imprisonment for violating the anti- terrorist legislation fall within category II, as they resulted from the legitimate exercise of his rights and freedoms.

E. 39 The Working Group recalls its observation that, in some cases, States are inclined to assert that the use of the Internet serves terrorist purposes, whereas, in fact, this proves later to be a pretext to restrict freedom of expression and repress political opponents.9

E. 40 The established practice of the Working Group is that restrictions placed on freedom of expression by way of deprivation of liberty can only be justified when it is shown that the deprivation of liberty has a legal basis in national law, does not violate international law and is necessary to ensure respect for the rights or reputation of others, or for the protection of national security, public order, public health or morals, and is proportionate to the pursued legitimate aims.10

E. 41 While the source states that Mr. Az used his social media account to comment on the recent developments regarding the ongoing conflict in his hometown of Taftanaz in Idlib in the Syrian Arab Republic, which per se may have been a legitimate exercise of his right to freedom of expression under article 19 of the Universal Declaration of Human Rights, the Government submits that he had in fact used his social media account to promote the Al- Qaida network and to recruit members for this terrorist organization.

E. 42 The Working Group is aware of the trend whereby terrorist organizations use social networks for recruitment or propaganda purposes. However, the Working Group considers that in the present case, the Government has failed to meet the burden of proof to support its contention and the conviction of Mr. Az by the State Security Chamber of the Federal Supreme Court. The Working Group also notes the Government’s past record of arbitrarily imprisoning individuals for their online social networking activities.11

E. 43 The Working Group considers that Mr. Az’s deprivation of liberty resulted from his exercising the right to freedom of expression, as the Government has failed to adequately prove or justify its necessity. The Working Group, therefore, concludes that the arrest and subsequent detention of Mr. Az fall within category II. Category III

E. 44 The Working Group has also considered whether violations of the right to a fair trial and due process suffered by Mr. Az were grave enough to give his deprivation of liberty an arbitrary character falling within category III.

E. 45 In particular, the Working Group examined the allegations that: Mr. Az was subject to arbitrary arrest and incommunicado detention; his confession was extracted through the 8 See opinion No. 39/2016, para. 45. 9 See deliberation No. 8 on deprivation of liberty linked to/resulting from the use of the Internet (E/CN.4/2006/7, paras. 32-52), para. 33. 10 Ibid., para. 43. 11 See opinions No. 12/2014 and No. 42/2013. A/HRC/WGAD/2017/21 7 use of torture during interrogations without legal counsel; his consular rights were violated;12 and forced confession was used as evidence against Mr. Az during the trial. The Working Group also reviewed the question of the independence and impartiality of the State Security Chamber of the Federal Supreme Court under international law.

E. 46 According to the information provided by the source, which the Government failed to rebut with credible evidence, Mr. Az was arrested without a warrant and was neither promptly informed of the reasons for his arrest, nor of any charges against him. Such arrest is arbitrary and in violation of article 9 of the Universal Declaration of Human Rights, and principles 2 and 10 of the Body of Principles.

E. 47 Subsequently, Mr. Az was detained incommunicado by the State Security Department for four months. This placed him outside the protection of the law. Furthermore, the incommunicado detention entailed the denial of his right to notify and communicate with his family, lawyer and consular officers in accordance with principles 15, 16, 17, 18 and 19 of the Body of Principles, and his right to be brought promptly before a judge and to be tried within a reasonable time as stipulated in principles 37 and 38 of the Body of Principles. In all, it resulted in the cumulative violation of articles 8, 9, 10 and 12 of the Universal Declaration of Human Rights.

E. 48 Mr. Az’s incommunicado detention enabled self-incriminating confessions to be obtained through torture and other cruel, inhuman or degrading treatment.13 The Working Group has previously considered allegations concerning the practice of employing torture and ill-treatment during incommunicado interrogation. 14 After her official visit to the United Arab Emirates in 2014, the Special Rapporteur on the independence of judges and lawyers reported that more than 200 complaints relating to torture and/or ill-treatment had been presented before judges and/or prosecutors over the past few years, but that those complaints had not been taken into account in judicial proceedings and no independent investigation into them had allegedly taken place.15

E. 49 The Working Group recalls that extracting a confession from a blindfolded detainee through torture by the State Security Department and accepting such a confession as evidence by the State Security Chamber of the Federal Supreme Court violate the right to a fair and public hearing found in articles 10 and 11 of the Universal Declaration of Human Rights.16

E. 50 In this regard, the Working Group recalls the judgment by the International Court of

Justice holding that the prohibition of torture is part of customary international law and it

has become a peremptory norm (jus cogens).17

51.

National law must therefore ensure that statements or confessions obtained as a

result of torture are excluded from the evidence; and where there is an allegation that a

statement was made under torture, the burden of proof rests with the prosecution and the

courts.18

12 With regard to the right to be informed of consular protection as distinct from the right to consular

protection per se, see also article 36 (1) (b) of the Vienna Convention on Consular Relations of 1963,

to which the United Arab Emirates is a State Party; and the International Court of Justice in LaGrand

(Germany v. United States of America), I.C.J. Reports 2001, p. 466, at p. 494, paras. 77-78, and

Avena and Other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports 2004, p. 12,

at pp. 35-36, para. 40.

13 See Human Rights Committee general comment No. 35 (2014) on liberty and security of person, para.

56.

14 Opinions No. 51/2015, No. 56/2014, No. 60/2013 and No. 27/2013.

15 A/HRC/29/26/Add.2, para. 53.

16 See also Human Rights Committee general comment No. 32 (2007) on the right to equality before

courts and tribunals and to a fair trial.

17 International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite

(Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at p. 457, para. 99.

18 See Human Rights Committee general comment No. 32 (2007), para. 41.

A/HRC/WGAD/2017/21

52.

The Working Group previously considered the criminal proceedings before the

Federal Supreme Court and found them to be in violation of the right to a fair trial

guaranteed by article 10 of the Universal Declaration of Human Rights.19

53.

The Working Group shares the Human Rights Committee’s standards applicable to

all courts and tribunals, whether they are ordinary or specialized, civilian or military, which

reflect customary international law under article 11 of the Universal Declaration of Human

Rights.20

54.

The Working Group notes that the Special Rapporteur on the independence of

judges and lawyers observed after her official visit to the United Arab Emirates in 2014 that

the current mechanism for appointing judges, including the President and other members of

the Federal Supreme Court, by the highest representatives of the executive branch lacks

transparency and may expose them to undue political pressure.21 She also raised concerns

that so-called State security crimes are considered in first and last instance by the State

Security Chamber of the Federal Supreme Court with no possibility of review by a higher

tribunal — as the Federal Supreme Court is the highest tribunal in the United Arab

Emirates — in breach of international human rights standards.22 In the present case, the

Working Group is concerned that the exclusive competence of the Federal Supreme Court

over certain criminal cases rules out the possibility of Mr. Az appealing his case before a

higher judicial court, which may result in a serious and irrevocable violation of the right to

a fair trial.

55.

The Working Group shall refer the present case to the Special Rapporteur on torture

and other cruel, inhuman or degrading treatment or punishment.

56.

The Working Group considers that the above violations of Mr. Az’s right to a fair

trial are of such gravity as to give his deprivation of liberty an arbitrary character.

Accordingly, his deprivation of liberty falls within category III of the arbitrary detention

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

Disposition

57.

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

The deprivation of liberty of Mr. Az, being in contravention of articles 6, 8, 9, 10,

11, 12 and 19 of the Universal Declaration of Human Rights, is arbitrary and falls

within categories I, II and III.

58.

The Working Group requests the Government of the United Arab Emirates to take

the steps necessary to remedy the situation of Mr. Az without delay and bring it into

conformity with relevant international norms, including those set out in the Universal

Declaration of Human Rights.

59.

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

case, the appropriate remedy would be to release Mr. Az immediately and accord him an

enforceable right to compensation and other reparations, in accordance with international

law.

60.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers this case to the Special Rapporteur on torture.

61.

The Working Group encourages the Government to ratify the International Covenant

on Civil and Political Rights and the International Convention for the Protection of All

Persons from Enforced Disappearance.

19 See opinion No. 60/2013, paras. 14 and 23.

20 See Human Rights Committee general comment No. 32 (2007), paras. 14 and 22.

21 A/HRC/29/26/Add.2, para. 35.

22 Ibid., para. 61.

A/HRC/WGAD/2017/21

Follow-up procedure

62.

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. Az has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Az;

(c)

Whether an investigation has been conducted into the violation of Mr. Az’s

rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of the United Arab Emirates with its international

obligations in line with the present opinion;

(e)

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

63.

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.

64.

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.

65.

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.23

[Adopted on 24 April 2017]

23 See Human Rights Council resolution 33/30, paras. 3 and 7.

Volltext (verifizierbarer Originaltext)

GE.17-11731(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. 21/2017 concerning Mohamad Ismat Mohamad Shaker Az

(United Arab Emirates)

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.

In accordance with its methods of work (A/HRC/33/66), on 14 December 2016 the

Working Group transmitted to the Government of the United Arab Emirates a

communication concerning Mohamad Ismat Mohamad Shaker Az. The Government replied

to the communication on 13 February 2017. The State is not a party to the International

Covenant on Civil and Political Rights.

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/2017/21

General Assembly

Distr.: General

13 July 2017

Original: English

A/HRC/WGAD/2017/21

Submissions

Communication from the source

Mohamad Ismat Mohamad Shaker Az, born on 20 February 1977 and citizen of the

Syrian Arab Republic, is a computer engineer. He usually resides in Al Dhaid, Al Sharjah,

in the United Arab Emirates.

Prior to his arrest, Mr. Az had been living in the United Arab Emirates for 12 years.

He taught computer science at a public school in Umm al-Quwain. From the start of the

conflict in the Syrian Arab Republic, Mr. Az used social media to comment on the

unfolding of the Syrian conflict in his hometown of Taftanaz in Idlib.

On 26 September 2013, while driving from Al Dhaid to Dubai, Mr. Az was arrested

by plain-clothed State security officers. They blindfolded him and took him to his house.

They proceeded to search his home for three hours without a warrant and confiscated laptop

computers, mobile telephones and money. Reportedly, officers then took Mr. Az to an

unknown location, neither providing any reason for his arrest, nor informing him of the

charges against him.

The source states that, initially, Mr. Az was detained at an unknown location for four

months. Throughout this period his family members searched for him. They inquired about

his whereabouts at different police stations and State security departments to no avail.

During the initial four months of secret detention by the State security forces of Al

Ain, Mr. Az was reportedly held in solitary confinement in a small, dark room. He was

threatened that he would be killed and that members of his family would be persecuted if he

did not confess. Consequently, owing to the psychological pressure that he was subjected

to, Mr. Az signed confessions, which he was not allowed to read beforehand, as he was

blindfolded. In addition, during the first four months of his detention, Mr. Az was denied

access to a lawyer and consequently was interrogated without the presence of legal counsel.

Moreover, he was repeatedly denied medical care for his thyroid deficiency.

On 12 January 2014, Mr. Az was transferred to Al Wathba prison, where his family

was allowed to visit him for the first time. According to the information received, he had

lost a considerable amount of weight.

10.

In June 2014, Mr. Az was brought before an investigative judge who worked for the

public prosecution service. Mr. Az indicated to the judge that while he was held in secret

detention, he had been forced to sign confessions without knowing their contents.

11.

On 11 August 2014, Mr. Az was officially informed of the charges against him

during the first hearing before the State Security Chamber of the Federal Supreme Court,

which is the court of first and last instance.

12.

On 9 December 2014, Mr. Az was convicted, under articles 5 and 12 of Federal Law

No. 1 of 2004 on Combating Terrorism Offences, of belonging to a terrorist organization

and collecting and transferring property to be used in full or in part to finance terrorist acts.

Mr. Az was also convicted of running and managing a website to further the interests of a

terrorist group on the basis of article 26 of Decree Law No. 5 of 2012.

13.

During his trial, Mr. Az’s defence counsel insisted that his client denied having any

link with any terrorist group and that he had been forced to make confessions under duress,

which should therefore be deemed inadmissible. However, when Mr. Az’s lawyer pointed

out that he had been interrogated without his counsel being present, the Court replied that

the right to legal counsel was only applicable during a trial, in accordance with article 4 of

the Code of Criminal Procedure, and did not include the investigative phase. Subsequently,

the Court accepted coerced confessions as evidence.

14.

On 9 December 2014, Mr. Az was sentenced to 15 years in prison. In the judgment,

the Court stated that an evaluation of the veracity and probative value of confessions was

“in its hands”. It further stated that if those confessions were later retracted, the Court was

the only body competent to decide whether to launch an investigation into claims of

coercion. The Court decided that it considered the confessions to be sound and was

convinced that they were true. It further stated that the allegations made could not be

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proven and that nothing in the legal documents corroborated the defendant’s claims of

psychological and physical coercion.

15.

Mr. Az is currently detained in Al Wathba prison, where he receives two visits a

month from his family, lasting 15 minutes each.

16.

The source submits that the deprivation of liberty of Mr. Az is arbitrary and falls

under categories I and III of the categories defined in the methods of work of the Working

Group. With regard to category I, in the view of the source, no legal basis was invoked by

the authorities to justify the deprivation of liberty of Mr. Az between the time of his arrest

in September 2013 and June 2014, when he first appeared before a judge. Furthermore, the

source adds that Mr. Az was held at an unknown location during the first four months of his

detention. The authorities failed to inform the family of Mr. Az about his whereabouts

during that period. The source argues that the initial four months of secret detention

confirms the authorities’ lack of respect for due process and the absence of a legal basis to

justify Mr. Az’s arrest and detention. The source thus argues that the detention of Mr. Az

between September 2013 and June 2014 has no legal basis and is in violation of article 9 of

the Universal Declaration of Human Rights.

17.

The source also submits that Mr. Az has not been guaranteed his right to a fair trial

throughout his deprivation of liberty, in violation of articles 10 and 11 of the Universal

Declaration of Human Rights. The source recalls that: Mr. Az was arrested by plain-clothed

State security officers, who did not present an arrest warrant; he was not informed of the

reason for his arrest when he was arrested; he was held at an unknown location and in

solitary confinement for four months, during which time he was forced to make

confessions; he did not have access to a lawyer during this period of time; he was brought

before a judge for the first time more than nine months after his arrest; and the Court did

not initiate an investigation into the confessions and that they were obtained under duress.

In addition, the source submits that Mr. Az was sentenced to 15 years in prison by the State

Security Chamber of the Federal Supreme Court, which is the highest judicial instance in

the United Arab Emirates and its decisions may not be appealed. Article 33 of Federal Law

No. 10 of 1973 concerning the Federal Supreme Court states that the Court has exclusive

competence over, inter alia, crimes directly affecting the interests of the Union, such as

crimes related to its security at home and abroad. The source argues that the exclusive

competence of the Federal Supreme Court over certain criminal cases rules out the

possibility of Mr. Az appealing to a higher judicial court.

Response from the Government

18.

On 14 December 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 about the current situation of Mr. Az and any

comment on the source’s allegations by 12 February 2017. The Working Group also

requested the Government to clarify the factual and legal grounds justifying his continued

detention and to provide details regarding the conformity of the relevant legal provisions

and proceedings with international law, in particular the norms of international human

rights law, which bind the United Arab Emirates. Moreover, the Working Group called

upon the Government to ensure the physical and mental integrity of Mr. Az.

19.

In its reply dated 13 February 2017, the Government responded to the Working

Group with the information below.

20.

According to the Government, Mr. Az was arrested in accordance with the

applicable laws of the United Arab Emirates, after being informed of the reasons for his

arrest by those who conducted the arrest and search. His family was also informed about

the place of his detention in the Emirate of Abu Dhabi. Mr. Az was allowed to contact his

family during his detention.

21.

On 10 December 2013 and 9 June 2014, Mr. Az was referred to the competent

authority, which then referred his case to the Federal Supreme Court. He was charged with:

joining a terrorist organization with knowledge of its objectives; convincing people to join a

terrorist organization to participate in the conflict in the Syrian Arab Republic; collecting

and transferring funds to a terrorist organization; supervising and using social media to

A/HRC/WGAD/2017/21

disseminate information about Al-Qaida in order to promote its ideas. Mr. Az was allowed

to appoint and meet a lawyer.

22.

The Government also states that Mr. Az was informed of the charges against him as

the Court read them out publicly and, on 9 December 2014, the Federal Supreme Court

sentenced him to 15 years of imprisonment, a fine of one million dirhams (approximately

$272,000) and ordered his deportation from the State after the execution of his sentence.

Mr. Az is currently serving his sentence in the central prison.

Further comments from the source

23.

In response to the Government’s claim that Mr. Az was able to communicate with

his family during his detention, the source states that the Government did not specify at

which point in time he was allowed to do so. This information therefore does not contradict

the allegation that Mr. Az had been detained incommunicado before being able to contact

his family.

24.

As for the Government’s argument that Mr. Az was arrested in accordance with

national law, the source responds that such law does not require the existence of an arrest

warrant, nor does it stipulate that an individual has the right to know the reason for his or

her arrest, which clearly contravenes international standards. The source therefore reaffirms

that Mr. Az was arrested without being informed of the reason for his arrest and without

being presented with a warrant.

25.

The source adds that Mr. Az’s place of detention was kept secret from his family

and they were repeatedly misinformed by the authorities about the place of his detention.

26.

While the Government states that on 10 December 2013 Mr. Az was referred to the

competent authority, which on 9 June 2014 transferred his case to the Federal Supreme

Court, the source alleges that Mr. Az was first brought before a judicial authority in June

2014. The source argues that, given that the Government did not specify the authority

concerned, it cannot be said that Mr. Az was brought before a judicial authority prior to the

start of his trial. Furthermore, the Government did not provide information on whether the

authority was competent to review the legality of his detention.

27.

Finally, the source states that the Government did not deny allegations made with

regard to torture, the absence of legal counsel, violation of the exclusionary rule and the

nature of the court.

28.

The source maintains that Mr. Az’s detention is arbitrary and falls under categories I

and III of the categories applicable to cases submitted to the Working Group.

Discussion

29.

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).

30.

The Working Group considers that it is entitled to assess the proceedings of a court

and the law itself to determine whether they meet international standards.1 However, the

Working Group 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 national law by the judiciary.2

31.

The Working Group notes with concern a series of cases in recent years in which the

Government of the United Arab Emirates has subjected its citizens and foreign nationals to

secret detention or incommunicado detention.3 Such practices of incommunicado detention

1 See opinion No. 33/2015, para. 80.

2 See opinion No. 40/2005.

3 Opinion Nos. 51/2015, 35/2015, 56/2014, 12/2014, 60/2013, 42/2013, 27/2013, 61/2012 and 64/2011.

A/HRC/WGAD/2017/21

effectively place victims outside the protection of the law and deprive them of any legal

safeguards. More specifically, the Working Group has received numerous allegations of the

arbitrary deprivation of liberty of foreigners by agents of the State Security Department in

the context of the Arab Spring and its aftermath. For example, there are clear similarities

between the factual patterns of the present case and those of opinions No. 51/2015, No.

35/2015 and No. 56/2014, in which the Working Group found the deprivation of liberty to

be arbitrary.

32.

The Working Group considers that States have an obligation to investigate and

prosecute the crime of terrorism in accordance with national law and international

customary law obligations, which are applicable at all times and in all circumstances.4

However, it recalls the reaffirmation in numerous resolutions of the Security Council,

including in its resolution 2170 (2014), of the need to combat threats to international peace

and security caused by terrorist acts by all means, in accordance with the Charter of the

United Nations and international law, including applicable international human rights,

refugee and humanitarian law. The Working Group also emphasizes the fact that effective

counter-terrorism measures and respect for human rights, fundamental freedoms and the

rule of law are complementary and mutually reinforcing.5

33.

Furthermore, the Working Group has recognized that where persons who have, or

are suspected to have, engaged in the preparation, commission or instigation of acts of

terrorism are deprived of their liberty:

(a)

They shall be immediately informed of the charges against them, and be

brought before a competent and independent judicial authority as soon as possible, within a

reasonable period of time;

(b)

They shall enjoy the effective right to judicial determination of the

arbitrariness and lawfulness of their detention;

(c)

The exercise of the right to judicial oversight of their detention shall not

impede the obligation of the law enforcement authority responsible for the decision to

detain or to maintain the detention to present suspects before a competent and independent

judicial authority within a reasonable period of time. Such persons shall be brought before

the judicial authority, which will then evaluate the accusations, the justification for the

deprivation of liberty and the subsequent judicial process;

(d)

In the proceedings against them, suspects shall have the right to a fair trial,

access to legal counsel and the ability to present exculpatory evidence and arguments under

the same conditions as the prosecution, all of which should take place in an adversarial

process.6

34.

The Working Group also points out that secret or incommunicado detention may put

individuals under pressure to confess to a crime and infringe their right not to be compelled

to testify against oneself, contrary to article 11 of the Universal Declaration of Human

Rights. The conclusions of the 2010 joint study on global practices in relation to secret

detention in the context of countering terrorism reiterate that international law clearly

prohibits secret detention and that secret detention violates a number of human rights and

humanitarian law norms that may not be derogated from under any circumstances.7

Category I

35.

The Working Group first determines whether it is clearly impossible to invoke any

legal basis justifying Mr. Az’s arrest and detention between September 2013 and June

2014, rendering it arbitrary under category I.

4 See opinion No. 51/2015, para. 58.

5 See 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 (A/HRC/30/37), para. 15.

6 Ibid., para. 93.

7 A/HRC/13/42.

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36.

While the Government states that Mr. Az was arrested in accordance with the law, it

has failed to substantiate its statements to refute the source’s prima facie allegations. In the

present case, the Government has offered no documentary evidence, such as a copy of the

arrest warrant, the case file or the record of court proceedings, which reportedly occurred

on 10 December 2013.

37.

The Working Group, therefore, accepts arguments presented by the source in this

regard. The initial arrest and prolonged detention of Mr. Az by the State Security

Department without any plausible legal basis constituted arbitrary arrest and detention, in

violation of article 9 of the Universal Declaration of Human Rights and principle 2 of the

Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment. The deprivation of liberty of Mr. Az, therefore, falls within category I.8

Category II

38.

The source argues that Mr. Az’s arrest, trial and imprisonment for violating the anti-

terrorist legislation fall within category II, as they resulted from the legitimate exercise of

his rights and freedoms.

39.

The Working Group recalls its observation that, in some cases, States are inclined to

assert that the use of the Internet serves terrorist purposes, whereas, in fact, this proves later

to be a pretext to restrict freedom of expression and repress political opponents.9

40.

The established practice of the Working Group is that restrictions placed on freedom

of expression by way of deprivation of liberty can only be justified when it is shown that

the deprivation of liberty has a legal basis in national law, does not violate international law

and is necessary to ensure respect for the rights or reputation of others, or for the protection

of national security, public order, public health or morals, and is proportionate to the

pursued legitimate aims.10

41.

While the source states that Mr. Az used his social media account to comment on the

recent developments regarding the ongoing conflict in his hometown of Taftanaz in Idlib in

the Syrian Arab Republic, which per se may have been a legitimate exercise of his right to

freedom of expression under article 19 of the Universal Declaration of Human Rights, the

Government submits that he had in fact used his social media account to promote the Al-

Qaida network and to recruit members for this terrorist organization.

42.

The Working Group is aware of the trend whereby terrorist organizations use social

networks for recruitment or propaganda purposes. However, the Working Group considers

that in the present case, the Government has failed to meet the burden of proof to support

its contention and the conviction of Mr. Az by the State Security Chamber of the Federal

Supreme Court. The Working Group also notes the Government’s past record of arbitrarily

imprisoning individuals for their online social networking activities.11

43.

The Working Group considers that Mr. Az’s deprivation of liberty resulted from his

exercising the right to freedom of expression, as the Government has failed to adequately

prove or justify its necessity. The Working Group, therefore, concludes that the arrest and

subsequent detention of Mr. Az fall within category II.

Category III

44.

The Working Group has also considered whether violations of the right to a fair trial

and due process suffered by Mr. Az were grave enough to give his deprivation of liberty an

arbitrary character falling within category III.

45.

In particular, the Working Group examined the allegations that: Mr. Az was subject

to arbitrary arrest and incommunicado detention; his confession was extracted through the

8 See opinion No. 39/2016, para. 45.

9 See deliberation No. 8 on deprivation of liberty linked to/resulting from the use of the Internet

(E/CN.4/2006/7, paras. 32-52), para. 33.

10 Ibid., para. 43.

11 See opinions No. 12/2014 and No. 42/2013.

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use of torture during interrogations without legal counsel; his consular rights were

violated;12 and forced confession was used as evidence against Mr. Az during the trial. The

Working Group also reviewed the question of the independence and impartiality of the

State Security Chamber of the Federal Supreme Court under international law.

46.

According to the information provided by the source, which the Government failed

to rebut with credible evidence, Mr. Az was arrested without a warrant and was neither

promptly informed of the reasons for his arrest, nor of any charges against him. Such arrest

is arbitrary and in violation of article 9 of the Universal Declaration of Human Rights, and

principles 2 and 10 of the Body of Principles.

47.

Subsequently, Mr. Az was detained incommunicado by the State Security

Department for four months. This placed him outside the protection of the law.

Furthermore, the incommunicado detention entailed the denial of his right to notify and

communicate with his family, lawyer and consular officers in accordance with principles

15, 16, 17, 18 and 19 of the Body of Principles, and his right to be brought promptly before

a judge and to be tried within a reasonable time as stipulated in principles 37 and 38 of the

Body of Principles. In all, it resulted in the cumulative violation of articles 8, 9, 10 and 12

of the Universal Declaration of Human Rights.

48.

Mr. Az’s incommunicado detention enabled self-incriminating confessions to be

obtained through torture and other cruel, inhuman or degrading treatment.13 The Working

Group has previously considered allegations concerning the practice of employing torture

and ill-treatment during incommunicado interrogation. 14 After her official visit to the

United Arab Emirates in 2014, the Special Rapporteur on the independence of judges and

lawyers reported that more than 200 complaints relating to torture and/or ill-treatment had

been presented before judges and/or prosecutors over the past few years, but that those

complaints had not been taken into account in judicial proceedings and no independent

investigation into them had allegedly taken place.15

49.

The Working Group recalls that extracting a confession from a blindfolded detainee

through torture by the State Security Department and accepting such a confession as

evidence by the State Security Chamber of the Federal Supreme Court violate the right to a

fair and public hearing found in articles 10 and 11 of the Universal Declaration of Human

Rights.16

50.

In this regard, the Working Group recalls the judgment by the International Court of