Opinion; Subjects: MAURITANIA, 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.17-11401 (E) 080817 090817
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. 35/2017 concerning Mohammed Shaikh Ould Mohammed
Ould Mkhaitir (Mauritania)
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 20 January 2017 the
Working Group transmitted to the Government of Mauritania a communication concerning
Mohammed Shaikh Ould Mohammed Ould Mkhaitir. The Government replied to the
communication on 17 March 2017. The State is a party to the International Covenant on
Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
United Nations
A/HRC/WGAD/2017/35
General Assembly
Distr.: General
7 July 2017
English
Original: French
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disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
Mohammed Shaikh Ould Mohammed Ould Mkhaitir is a 31-year-old blogger and
anti-slavery activist of Mauritanian nationality. He was arrested on 2 January 2014.
Context
5.
According to the source, Mauritanian society remains divided according to an
ethnic-based caste system. The source alleges that the anti-slavery laws adopted in
Mauritania are not enforced and that the Government suppresses abolitionist speech and
protests. The source maintains that Mauritanian slave-owners use a special interpretation of
Islam to justify continuing the practice.
6.
The source notes that, although freedom of expression, freedom of opinion and
freedom of thought are enshrined in the Constitution, their enjoyment is highly restricted in
practice. The Constitution does not include any guarantees for freedom of religion. Article
306 of the Criminal Code penalizes, inter alia, acts against Islamic morals and decency,
apostasy and hypocrisy. According to the source, this provision is used by the Government
to restrict the exercise of the individual freedoms of expression, opinion, thought and
religion, which are protected under international conventions and treaties ratified by
Mauritania. The source considers that the Mauritanian courts lack independence and notes
that detention conditions are notoriously harsh.
Arrest and detention
7.
In December 2013, Mr. Mkhaitir published an article called “Religion, religiosité et
forgerons” (“Religion, religiosity and blacksmiths”) on an online news site. The article
criticized the use of religion to justify slavery. Some Mauritanians were shocked by the
article’s analysis of the early history of Islam. On 2 January 2014, Mr. Mkhaitir was
arrested and accused of the following capital offences: apostasy and insulting the Prophet
Muhammad, under title II, section IV, article 306 of the Criminal Code. When Mr. Mkhaitir
learned that the authorities were looking for him, he voluntarily turned himself in. After his
arrest, the public continued to protest against his article. The President himself allegedly
joined the protesters, stating that he stood with them against Mr. Mkhaitir.
8.
According to the source, Mr. Mkhaitir was questioned on numerous occasions while
in police custody. During one of the interrogations, he allegedly expressed remorse for his
article. The interrogation was recorded, but the police later claimed that the recording had
been lost. On 11 January 2014, Mr. Mkhaitir published a written statement from prison in
which he once again expressed remorse for his article and clarified his intentions in writing
it. Despite his statement and expression of remorse, the public remained incensed by the
article and protests continued.
9.
On 23 December 2014, after nearly a year in custody, Mr. Mkhaitir was brought
before the criminal court of Dakhlet Nouadhibou. The source states that Mr. Mkhaitir was
heard by a panel of five judges, two of whom were allegedly specially chosen by the
Ministry of Justice and lacked impartiality and independence. Although the content of Mr.
Mkhaitir’s article was the basis of the charges against him, the court apparently refused to
discuss it at trial. Consequently, the defence focused on the fact that Mr. Mkhaitir had
expressed remorse and should be pardoned under article 306 of the Criminal Code. At the
end of the trial, Mr. Mkhaitir once again expressed remorse before the court.
10.
On 24 December 2014, the court found Mr. Mkhaitir guilty of hypocrisy and
insulting the Prophet Muhammad. He was sentenced to execution by firing squad. The
source notes that the court refused to admit Mr. Mkhaitir’s expression of remorse and found
him guilty of hypocrisy, an offence with which he had never been charged. Under article
306 of the Criminal Code, if the defendant expresses remorse, the maximum penalty for
apostasy is two years’ imprisonment. However, expressing remorse has no mitigating effect
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if the charge is hypocrisy. In its decision, the court based itself on what it considered to be
historical inaccuracies in the article, which it saw as evidence of a lack of sincerity in Mr.
Mkhaitir’s expression of remorse.
11.
According to the source, Mr. Mkhaitir and his lawyers did not know until the verdict
came down that the court was ruling on the offence of hypocrisy. Mr. Mkhaitir’s lawyers
had focused their defence on his expression of remorse because their client was being tried
for apostasy. They were therefore shocked to find out that Mr. Mkhaitir had been sentenced
to death for a different offence.
12.
Mr. Mkhaitir appealed his conviction before the appeal court of Nouadhibou. On 21
April 2016, the appeal court upheld the conviction but stated that the case should have been
categorized as an offence of apostasy rather than hypocrisy. The appeal court referred the
case to the Supreme Court for consideration of the sincerity of Mr. Mkhaitir’s expression of
remorse.
13.
The case was heard by the Supreme Court on 15 November 2016. A few days before
the hearing, the Forum of Imams and Ulemas issued a fatwa against Mr. Mkhaitir, calling
on the Supreme Court to uphold his death sentence. According to the source, during the
hearing, the Supreme Court was surrounded by an angry crowd calling for his death
sentence to be upheld; a number of the protesters were armed. The crowd became so
threatening that Mr. Mkhaitir’s lawyers had to wait in the courtroom until the protesters
left. As a result of all the pressure, the Supreme Court decided to postpone its verdict to 20
December 2016, and then again to 31 January 2017.
14.
The source believes that Mr. Mkhaitir’s detention constitutes arbitrary deprivation
of liberty under categories II and III.
Category II
15.
According to the source, Mr. Mkhaitir’s detention is arbitrary under category II
because he was arrested, detained and convicted for exercising his freedoms of opinion and
expression. These freedoms are protected under article 19 of the Universal Declaration of
Human Rights, article 19 (2) of the International Covenant on Civil and Political Rights and
article 9 of the African Charter on Human and Peoples’ Rights and can be restricted only
when necessary to respect the rights or reputations of others or to protect national security,
public order or public health or morals (one of the purposes listed). The source notes that
the authorized restrictions are extremely narrow and do not apply in this case because the
restriction of Mr. Mkhaitir’s freedom of expression was not necessary to protect one of the
purposes listed. Political statements, discussions on human rights and religious speech are
all protected, and the scope of protection under international law even includes statements
that could be considered offensive or inaccurate.
16.
The source notes that the Government detained Mr. Mkhaitir on the grounds of the
views he expressed in his abolitionist article. Yet the source believes that the article clearly
falls within the scope of protection of freedom of expression as set out in the Universal
Declaration of Human Rights, the Covenant and the Charter, because it can be described as
both political and religious. Moreover, the article did not advocate violence and did not,
therefore, constitute a threat to the rights or reputations of others, national security, public
order or public health or morals.
17.
The source is of the opinion that Mr. Mkhaitir’s detention is also arbitrary under
category II insofar as the law under which he was convicted clearly breaches the safeguards
provided for in international law in respect of freedom of religion. Article 18 of the
Universal Declaration of Human Rights, article 18 of the Covenant and article 8 of the
Charter protect the right of every person to freedom of thought, conscience and religion. In
addition, the source points out that the Human Rights Committee and the Special
Rapporteur on freedom of religion or belief have recommended that Mauritania abolish the
offence of apostasy. However, article 306 of the Criminal Code prohibits persons from
expressing views that the Government considers as contrary to Islam. According to the
source, the criminalization of thought on the sole basis of the individual religious beliefs or
statements that the Government considers offensive constitutes a blatant violation of
freedom of religion as guaranteed by the Universal Declaration of Human Rights, the
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Covenant and the Charter. Furthermore, the few authorized limitations on freedom of
religion listed in article 18 (3) of the Covenant do not apply to Mr. Mkhaitir because the
limitations must be necessary to protect public safety, order, health or morals or the
fundamental rights and freedoms of others. These limitations are interpreted in a restrictive
manner and may not be based on principles stemming from a single religion as was done in
this case.
Category III
18.
According to the source, Mr. Mkhaitir’s detention is also arbitrary under category III
because the Government denied him the right to a fair trial.
19.
The source is of the view that the Government denied Mr. Mkhaitir the right to be
tried by an independent and impartial tribunal, the right to equality before the courts and the
right to be presumed innocent, in violation of articles 7, 10 and 11 (1) of the Universal
Declaration of Human Rights, article 14 (1) and (2) of the Covenant, and articles 3 and 7
(1) (b) and (d) of the Charter. The lack of an independent and impartial tribunal is
demonstrated by the fact that: two of the judges were appointed by the executive branch;
the court banned discussion of the content of the article during the trial; the court ignored
Mr. Mkhaitir’s repeated expressions of remorse and denied him the possibility to express
remorse after his conviction, as was his right under the law; the court permitted a hostile
crowd to harass Mr. Mkhaitir and his lawyers before and during the trial; and the
investigative authorities refused to transmit a key piece of evidence, namely Mr. Mkhaitir’s
first expression of remorse. According to the source, Mr. Mkhaitir’s inequality before the
courts was demonstrated by his unfair treatment by the court, in particular its refusal to
address his expression of remorse in keeping with the law. The source notes that this
treatment, along with the President’s statements prior to the trial that he was on the side of
anti-Mkhaitir protesters and that Mr. Mkhaitir would be punished, show that Mr. Mkhaitir
was presumed to be guilty.
20.
Furthermore, the source contends that, by finding Mr. Mkhaitir guilty of an offence
other than the one he was charged with, the authorities denied Mr. Mkhaitir the right to be
informed of the charges against him and of the right to prepare a defence, in violation of
article 10 of the Universal Declaration of Human Rights, article 14 (3) (a) of the Covenant,
and article 7 (1) (c) of the Charter. The source considers that if Mr. Mkhaitir had known
that he stood accused of hypocrisy rather than apostasy, he would have been able to mount
an appropriate defence with his lawyers. The appeal court itself stated that the charge
should have been apostasy rather than hypocrisy, thereby confirming that the lower court
had made a mistake by changing the charge from apostasy to hypocrisy part-way through
the trial. The source notes that the court’s ban on bringing up the content of the article
during the trial and the fact that it permitted an unruly anti-Mkhaitir crowd inside the
courtroom also prevented Mr. Mkhaitir from mounting a proper defence.
21.
Lastly, the source notes that Mauritania failed to grant Mr. Mkhaitir the right to be
released pending trial or the right to be tried within a reasonable time, in violation of article
9 of the Universal Declaration of Human Rights, articles 9 (3) and (4) and 14 (3) (c) of the
Covenant, and articles 6 and 7 (1) (d) of the Charter. Following his arrest in January 2014,
Mr. Mkhaitir was not promptly brought before a judge or justice official for a ruling on the
legality of his arrest and detention or on his release pending trial. On the contrary, he was
held in pretrial detention for nearly a year until his trial at the end of December 2014. The
source contends that the fact that Mr. Mkhaitir was not brought before a justice official or
released pending trial constitutes a violation of his rights under article 9 (3) and (4) of the
Covenant. Furthermore, the fact that Mr. Mkhaitir had to wait a year for his trial — an
unreasonable period under any circumstance and the more so when the defendant is in
pretrial detention — violated his right to a trial within a reasonable time as provided for in
article 9 of the Universal Declaration of Human Rights, article 14 (3) (c) of the Covenant,
and articles 6 and 7 (1) (d) of the Charter.
Response from the Government
22.
On 29 January 2017, the Working Group transmitted the source’s allegations to the
Government of Mauritania under its regular communication procedure. The Working
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Group requested the Government to provide, by 20 March 2017, more detailed information
on Mr. Mkhaitir’s situation since his arrest, including any comments it wished to make
regarding the allegations in the communication. The Working Group also requested the
Government to clarify the facts and legal provisions on which Mr. Mkhaitir’s deprivation of
liberty is based and explain how they comply with the obligations of Mauritania under
international human rights law, in particular the treaties ratified by Mauritania. The
Government submitted its reply on 17 March 2017 in both Arabic and French.
23.
In its reply, the Government begins by recalling the principles and guarantees
enshrined in the Constitution and Mauritanian law with regard to the freedoms in question,
including the rights of defendants in criminal proceedings. The Government contends that
the legal provisions in place protect against arbitrary detention and guarantee the
presumption of innocence and the right to a fair trial by an independent and impartial court.
The Government further recalls that Mauritania is an Islamic republic and that the
Mauritanian people is attached to the precepts and values of Islam, which extol freedom,
equality and justice for all without distinction or restriction other than that prescribed by
law.
24.
The Government then summarizes the Mkhaitir case, confirming most of the facts
and proceedings reported by the source. The Government claims that the numerous requests
for release and other applications submitted by the defence delayed the transfer of the file to
the criminal court until 5 May 2014, “just before the judicial hiatus”. The Government
reports that the criminal court held the hearing on 23 December 2014 and rendered its
judgment on the following day. The court found Mr. Mkhaitir guilty of blasphemy towards
the Prophet Muhammad and hypocrisy (instead of apostasy), after the acts had been
recategorized. Mr. Mkhaitir was sentenced to death. The appeal court of Nouadhibou found
him guilty of apostasy and sentenced him to death, but referred the matter of his expression
of remorse to the Supreme Court for an assessment of its sincerity. On the basis of the
appeal in cassation, the Supreme Court overturned the court’s judgment and sent the case
back to a different panel of the appeal court.
25.
The Government maintains that Mr. Mkhaitir received a fair trial by an independent
and impartial court, before which he had the assistance of professional lawyers and was
allowed to freely present his defence. The Government further maintains that Mr. Mkhaitir
was tried by the same criminal court that tries all other persons accused of a crime, and
which consists of a presiding judge and two co-judges, all of whom are professional judicial
officials, assisted by two jurors appointed by the president of the competent appeal court on
the advice of the public prosecutor at that court. The Government contests the source’s
allegation that the Ministry of Justice was involved in deciding the composition of the
criminal court.
26.
The Government also contests the allegation that the court refused to address the
article that formed the basis of the charges against Mr. Mkhaitir at the trial. According to
the Government, two of the judgment’s 20 pages were dedicated to presenting the article
and another 14 pages to a discussion of the article.
27.
Regarding the recategorization of the offence of apostasy as one of hypocrisy, the
Government contends that the court did not change the acts of which Mr. Mkhaitir stood
accused but merely used its sovereign power of assessment to recategorize them.
28.
Regarding the fatwa issued by the Forum of Imams and Ulemas and the hostile
protesters’ calls for the court to uphold Mr. Mkhaitir’s death sentence, the Government
maintains that the “the ulemas’ exercise of their right to issue fatwas and the public’s
exercise of its right to protest in no way influenced the decision of the Supreme Court,
which ruled freely and sovereignly and, incidentally, against the fatwa and the protesters’
calls”.
29.
The Government denies the source’s claim that Mr. Mkhaitir’s detention was
arbitrary under category II. It contends that Mr. Mkhaitir was not held or convicted for
exercising his freedoms of expression and opinion but for exercising those freedoms
outside the framework of the law. According to the Government, Mr. Mkhaitir’s article
attacked the values and sacred principles of Islam, “the religion of the State and of the
people”. In addition, the Government recalls that the State entered a reservation to article
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18 of the Covenant and argues that, consequently, Mr. Mkhaitir’s freedom of religion was
not violated.
30.
Lastly, the Government challenges the source’s claims regarding category III. It
states that, during his trial, Mr. Mkhaitir enjoyed every safeguard related to the right to be
tried fairly by an independent and impartial court, to freely present his defence and to
introduce any apposite motion or application to protect his rights.
Additional comments from the source
31.
The Government’s reply was transmitted to the source on 23 March 2017. In its
response, the source clarifies some of the elements of its argument in the light of the
Government’s reply and submits additional arguments on points of law to strengthen its
initial legal analysis.
Discussion
32.
To begin with, the Working Group recalls that, on 28 November 2016, the Special
Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on
the promotion and protection of the right to freedom of opinion and expression, the Special
Rapporteur in the field of cultural rights and the Special Rapporteur on freedom of religion
or belief transmitted an urgent appeal to the Government of Mauritania in which they
expressed their serious concerns about the case of Mr. Mkhaitir.1 Although the Government
unfortunately did not reply to the urgent appeal, the Working Group would like to thank
Mauritania for its exemplary cooperation in the present procedure.
33.
The parties to the case do not appear to dispute the facts on the whole. They agree
that Mr. Mkhaitir turned himself in to the police on 2 January 2014 after learning that he
was wanted in connection with an article published in December 2013. He was accused of
apostasy and insulting the Prophet Muhammad. He allegedly expressed remorse during
interrogation and subsequently, from his cell, published a piece to clarify the initial article
and once again express his remorse. The trial was held on 23 December 2014 before a panel
of five judges, who convicted him of hypocrisy and insulting the Prophet Muhammad and
sentenced him to death – a first, according to the source, following years of a de facto
moratorium on capital punishment. The appeal court of Nouadhibou upheld the conviction
on 21 April 2016, while noting that the panel should have tried him for the offence of
apostasy, but referred the case to the Supreme Court for its assessment of the sincerity of
the expression of remorse. In response to the appeal, the Supreme Court sent the case back
to a different panel of the appeal court on 31 January 2017.
34.
Thus, the main area of contention is the labelling of the detention as arbitrary under
categories II and III. The Working Group will, therefore, consider the facts from these two
perspectives.
35.
Regarding category II, the source alleges that the Constitution of Mauritania does
not guarantee freedom of religion and that domestic law breaches freedom of religion as
protected under article 18 of the Universal Declaration of Human Rights, article 18 of the
Covenant and article 8 of the Charter. The Government maintains that its reservation to
article 18 of the Covenant ensures the primacy of Islamic law and that, accordingly, the
source’s argument does not hold. In addition, the source contends that freedom of
expression and freedom of opinion are protected under article 19 of the Covenant and can
be restricted only in a limited manner (see para. 15 above). The Government is of the view
that these freedoms can be exercised only within the framework of the law.
36.
Both parties agree that Mr. Mkhaitir’s case is a matter of freedom of opinion and
freedom of expression as applied to religious issues. It is the Working Group’s task to
determine whether, in the present case, the restrictions stemming from Mauritanian criminal
law are in line with international law. In order to do this, it is important to assess the
validity of the State’s reservation to article 18 of the Covenant.
1 See https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunication
File?gId=22854.
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37.
A reservation is “a unilateral statement, however phrased or named, made by a State,
when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty in their application
to that State” (Vienna Convention on the Law of Treaties, art. 2). Articles 19 to 23 of the
Vienna Convention lay down the legal framework for reservations.2 The reservation entered
by Mauritania to article 18 of the Covenant appears to allow the primacy of Islamic law.3
38.
However, the Human Rights Committee addressed the reservation in its concluding
observations of 30 October 2013 (see CCPR/C/MRT/CO/1, para. 6) as follows:
The Committee notes the concerns that the reference in the preamble to the State
party’s Constitution to Islam as the only source of law could lead to legislative
provisions that prevent the full enjoyment of some rights provided for in the
Covenant. The Committee notes with concern that the State party has entered a
reservation to article 18, although the Covenant provides that there may be no
derogation from that article to article 23, paragraph 4, of the Covenant and regrets
the State party’s position that it will maintain them (arts. 2, 18 and 23).
The State party should ensure that the reference to Islam does not prevent the full
application of the Covenant in its legal order and does not serve to justify the State
party not implementing its obligations under the Covenant. The Committee therefore
encourages the State party to consider withdrawing its reservations to article 18 and
article 23, paragraph 4, of the Covenant.
39.
In the light of the Human Rights Committee’s concluding observations, the Working
Group concludes that the Government’s argument regarding the reservation to article 18 of
the Covenant does not stand. Moreover, the Working Group recalls that the obligation of
Mauritania to respect Mr. Mkhaitir’s freedom of conscience and religion also derives from
article 8 of the Charter (to which no reservation was entered) and article 18 of the Universal
Declaration of Human Rights.
40.
Given the above, and in order to assess the restriction imposed by Mauritanian
criminal law, it is necessary to refer to the Human Rights Committee’s interpretation of
article 18 of the Covenant. It transpires from its general comment No. 22 (1993), on the
right to freedom of thought, conscience and religion, that as a consequence of freedom of
religion, in conjunction with freedom of thought and belief (art. 18), and of freedom of
expression (art. 19), everyone may express their opinion in public or private, even on
matters of religion. This is precisely what happened in Mr. Mkhaitir’s case.
41.
Moreover, the very essence of Mr. Mkhaitir’s reasoning was that a social group
should not be enslaved or viewed as inferior on the basis of religion. The expression of such
reasoning may not in any way be restricted under article 18 of the Covenant.
42.
In addition, in respect of the offence of apostasy, it is worth recalling paragraph 21
of the Human Rights Committee’s concluding observations (CCPR/C/MRT/CO/1):
While noting that Islam is the State religion in Mauritania, the Committee is
concerned that exercise of the freedom of conscience and religion is not formally
guaranteed for Muslim Mauritanians, for whom a change of religion is classified as
apostasy and is punishable by the death penalty (arts. 2, 6 and 18).
The State party should remove the crime of apostasy from its legislation and
authorize Mauritanians to fully enjoy their freedom of religion, including by
changing religion.
43.
The Working Group is of the view that Mr. Mkhaitir’s arrest and detention were the
consequence of the exercise of his freedom of opinion and expression as protected under
2 This is a codification convention. Although Mauritania has not ratified the Vienna Convention, its
provisions apply to it under international customary law.
3 The reservation (see http://treaties.un.org) reads as follows: “The Mauritanian Government, while
accepting the provisions set out in article 18 concerning freedom of thought, conscience and religion,
declares that their application shall be without prejudice to the Islamic sharia.”
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articles 18 and 19 of the Covenant. Therefore, his deprivation of liberty was arbitrary under
category II. Under these circumstances, Mr. Mkhaitir’s trial should not have taken place.
However, since the trial has already taken place, the Working Group will consider the
arguments regarding the trial as they pertain to category III.
44.
In this regard, the source maintains that: the Mauritanian justice system is not
independent; two of the five judges on the panel were specially appointed by the Ministry
of Justice; the panel refused to discuss the content of the article in question and
recategorized the offence in its judgment on the merits, without giving the accused the
opportunity to defend himself against the new charge; and the trial and appellate judges
refused to admit the expression of remorse. The source adds that the President’s statement
condemning Mr. Mkhaitir, the public protests in favour of his death sentence and the fatwa
supporting the death penalty all influenced the judges, including those of the Supreme
Court, while undermining the principle of equality before the courts. Lastly, the source
contends that denying Mr. Mkhaitir’s release pending trial also infringed his rights.
45.
The Government refutes all these allegations but does not deny that the President
stated before the opening of the trial that he was on the side of the protesters and that Mr.
Mkhaitir would be punished. The Government recalls that the President is the guarantor of
judicial independence.
46.
The Working Group has already expressed its views regarding the President’s public
statements on a criminal case in a previous case concerning Mauritania (see opinion No.
36/2016, para. 34). The Working Group is of the view that the President’s statement
regarding Mr. Mkhaitir, which the Government does not deny, was inappropriate. The
statement weakens both the perceived independence of the justice system, despite the
President being its guarantor, and the perceived impartiality of criminal proceedings. The
statement also violates the presumption of innocence, as pointed out by the Human Rights
Committee in its general comment No. 32 (para. 30): “It is a duty for all public authorities
to refrain from prejudging the outcome of a trial, e.g. by abstaining from making public
statements affirming the guilt of the accused.” This violation alone is sufficiently serious to
have definitively undermined the fairness of the trial, thereby rendering Mr. Mkhaitir’s
detention arbitrary under category III.
47.
The Government maintains that Mr. Mkhaitir’s repeated applications for release
prevented the case from being transferred rapidly to the court for judgment on the merits.
Yet, according to the Government itself, the case was transferred on 5 May 2014 but the
trial did not open until 23 December 2014. It is not clear whether the Government is
blaming the defence for the four-month delay before the transfer to the criminal court or the
delay of more over six months between the transfer and the opening of the trial. Whatever
the case may be, the Working Group considers that the argument put forward by
Government does not satisfactorily explain the total delay, i.e. 11 months between the arrest
and the opening of the trial. In any case, Mr. Mkhaitir had the right to apply for release by
challenging the grounds for his pretrial detention. The source points out that judges have a
duty to render their decision on such applications within 72 hours, but that in this case the
president of the court did not rule on the application for release submitted on 6 May 2014
until 6 August 2014.
48.
As to the source’s arguments regarding the alleged lack of independence of the panel
of judges, the Working Group takes note of the Government’s reply and regrets the general
nature of the source’s allegations. Under the circumstances, the Working Group cannot take
these allegations into consideration.
49.
Regarding the protests at the Supreme Court hearing, the Working Group recalls that
the right to peaceful assembly is protected under international law. In this case, the source
maintains that some of the protesters were armed, which the Government has not denied.
However, the Working Group does not have enough information to determine whether or
not the assembly was peaceful. When jurors who are not professional judges are involved in
a trial, protests against the defendant can influence their judgment and, by extension, the
impartiality of the proceedings. Nevertheless, in this case, the parties’ arguments are not
specific enough for the Working Group to take a position in this regard.
A/HRC/WGAD/2017/35
GE.17-11401
9
50.
More generally, the Working Group remains concerned about the whole issue of
detention in Mauritania. It would be happy to conduct a follow-up visit to the country in
order to engage in a constructive dialogue with the Government on the process of legal
reform, on which the Government appears to have already made a start.
Disposition
51.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mohammed Shaikh Ould Mohammed Ould Mkhaitir,
being in contravention of articles 18 and 19 of the Universal Declaration of Human
Rights and of articles 14 (3), 18 and 19 of the International Covenant on Civil and
Political Rights, is arbitrary and falls within categories II and III.
52.
The Working Group requests the Government of Mauritania to take the steps
necessary to remedy the situation of Mohammed Shaikh Ould Mohammed Ould Mkhaitir
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.
53.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mohammed Shaikh Ould Mohammed
Ould Mkhaitir immediately and accord him an enforceable right to compensation and other
reparations, including guarantees of non-repetition, in accordance with international law.
Follow-up procedure
54.
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. Mkhaitir has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Mkhaitir;
(c)
Whether an investigation has been conducted into the violation of Mr.
Mkhaitir’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 Mauritania with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
55.
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.
56.
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.
57.
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.4
[Adopted on 27 April 2017]
4 See Human Rights Council resolution 33/30, paras. 3 and 7.