A/HRC/WGAD/2017/36

GE.17-13938(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. 36/2017 concerning Ahmad Suleiman Jami Muhanna al-

Alwani (Iraq)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and

Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The mandate of the Working Group was most recently extended for a three-

year period in Council resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/33/66), on 16 January 2017 the

Working Group transmitted to the Government of Iraq a communication concerning Ahmad

Suleiman Jami Muhanna al-Alwani. The Government replied to the communication on 15

March 2017. The State is a party to the International Covenant on Civil and Political

Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

United Nations

A/HRC/WGAD/2017/36

General Assembly

Distr.: General

14 August 2017

Original: English

A/HRC/WGAD/2017/36

2

Submissions

Communication from the source

4.

Ahmad Suleiman Jami Muhanna al-Alwani, born in 1969, is an Iraqi national. Mr.

Al-Alwani usually resides in Ramadi, Anbar Province.

Background

5.

The source reports that, in December 2012, ongoing peaceful demonstrations and

sit-ins began to be held in Ramadi, Anbar Province, by Iraqi Sunnis protesting against their

marginalization under government policies and especially against the discriminatory and

abusive use of counter-terrorism measures targeting them. The protraction of those peaceful

sit-ins reportedly turned the city into the symbolic centre of the Sunni protest movement

countrywide.

6.

At the time of those events, Mr. Al-Alwani had been serving his second mandate as

a member of the Iraqi Council of Representatives within the parliamentary block Al-

Iraqiya, a secular alliance, and acting as head of the Parliamentary Economic and

Investment Committee. As a Sunni leader, he had reportedly also been a vocal critic and

political opponent of the Government of former Prime Minister Al-Maliki. In addition, he

had been well known as a parliamentarian for having strongly and publicly criticized

corruption within the Iraqi political leadership.

7.

While campaigning ahead of the national elections of 30 April 2014, Prime Minister

Al-Maliki had repeatedly threatened to remove the demonstration site and, on 22 December

2013, had accused protesters of “stirring strife” and “sheltering al-Qaeda-linked militants”.

However, the protests were reportedly peaceful, and the leaders repeatedly stated that the

site was open to police inspection at any time and that no opposition from them to a

governmental attempt to search the site had ever been reported.

8.

It is in that context that Mr. Al-Alwani was arrested on 28 December 2013, despite

his parliamentary immunity protecting him pursuant to article 63.2.b of the Constitution of

Iraq.

Arrest and detention

9.

According to the source, on 28 December 2013 at 3.45 a.m., on the direct orders of

the Prime Minister’s Office, a task force composed of officers of the Army, Special

Weapons and Tactics units and Counter Terrorism Forces — all in military uniforms —

stormed Mr. Al-Alwani’s house, firing live bullets. Some of his security officers responded

with fire in order to protect Mr. Al-Alwani and themselves. As a result of the attack, Mr.

Al-Alwani’s brother, Ali Suleiman, and five of his bodyguards, were killed.

10.

The source reports that Mr. Al-Alwani was subsequently arrested and was beaten

and insulted while being dragged out of his house. Since the arrest, no arrest warrant has

even been shown to Mr. Al-Alwani or his family and the exact reasons for the arrest were

not explained to them. Some officials have claimed in the media that he had been “wanted

on suspicion of terrorism” but without providing him or his lawyer with an exact

description of the incriminating acts and the charges brought against him.

11.

According to the information from the source, the Minister for Defence, Saadoun

Al-Dulaimi, declared the following day that, if the protests ceased within two days, Mr. Al-

Alwani would be released, thus revealing an attempt by the Government to use this arrest as

a political tool to shut down the peaceful protests in Ramadi.

12.

However, the peaceful protests did not stop and, on 30 December 2013, security

forces reportedly started to bulldoze the sit-in site, after having cut off mobile telephone

communications and Internet access across Anbar Province. A violent incursion by the Iraqi

security forces, which included firing at protesters with live bullets, reportedly left at least

17 people dead. Subsequently, more than 40 members of the Council of Representatives

from the Al-Iraqiya bloc resigned, demanding Mr. Al-Alwani’s release and denouncing his

arrest as politically motivated.

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13.

The source reports that, after his arrest, Mr. Al-Alwani was taken to a secret place of

detention, where he was held for one month. The authorities systematically refused to

provide information to his family and lawyer about his whereabouts or the charges pending

against him. The Council of Representatives officially asked the Government to disclose

the information to them, but to no avail. His relatives later learned that, while being secretly

detained, Mr. Al-Alwani was beaten and subjected to other acts of torture in order to force

him to make confessions. As a result, he was forced to sign official documents containing

statements that he was not allowed to read.

Trial proceedings

14.

According to the source, Mr. Al-Alwani reportedly reappeared one month after his

arrest when he was presented on 27 January 2014 before the Public Prosecutor of the

Central Criminal Court of Iraq in Baghdad. At that time, he had visible marks of torture and

was handcuffed and hooded. He was then charged, under article 4 of the Anti-Terrorism

Law No. 13 of 7 November 2005, with “assault on military assets and killing and injuring

security forces for terrorist ends” for the murder and attempted murder of members of the

security forces. That law provides that “anyone who committed, as a main perpetrator or a

participant, any of the terrorist acts … shall be sentenced to death”. The first trial hearing

was then held on 9 March 2014 before the Central Criminal Court.

15.

Mr. Al-Alwani’s lawyer, Badee Arif Izat, was reportedly never allowed to contact

his client or visit him in prison to prepare his defence, but could only briefly talk to him in

court, in the constant presence of members of the Iraqi Special Forces.

16.

According to the source, in March 2014, Mr. Al-Alwani was transferred to a

detention centre controlled by the Counter Terrorism Forces, located in the “Green Zone”

in Baghdad, where he was held in solitary confinement and denied access to the outside

world. His family, lawyer and members of the Council of Representatives have reportedly

not been allowed to visit him in prison.

17.

Later that month, while on his way to a meeting with officials from the United

Nations Assistance Mission for Iraq (UNAMI), Mr. Al-Alwani’s lawyer was reportedly

arrested by a patrol of the Iraqi Special Forces, claiming that he had been “carrying false

identity documents”. He was then blindfolded and taken to a secret location within the

Green Zone, where he was questioned about his motives for defending Mr. Al-Alwani.

After having been kept blindfolded for 12 hours, he was threatened and forced to make a

video recording in which he stated that he had not been subjected to torture, before being

released.

18.

The source reports that, on 23 November 2014, the Central Criminal Court

sentenced Mr. Al-Alwani to death for terrorism under article 4 of the Anti-Terrorism Law,

on the basis of his confessions extracted under torture and after a heavily flawed trial. In

fact, the judge reportedly dismissed all the exculpatory evidence, only considered the

version of the facts provided by the security services and refused to hear the defence

witnesses. In addition, during the trial, Mr. Al-Alwani’s lawyer was denied the right to

cross-examine the witnesses of the prosecution, and his statements denouncing the trial

irregularities were dismissed. Finally, the allegations of torture presented by Mr. Al-Alwani

were not taken into consideration and no inquiry was initiated in respect of those

allegations.

19.

Mr. Al-Alwani’s lawyer filed an appeal before the Court of Cassation, which was

pending at the time of the submission by the source. On 12 November 2015, a hearing was

held but the Court decided to postpone its decision indefinitely.

20.

In December 2015, Mr. Al-Alwani was transferred from the detention centre

controlled by the Counter Terrorism Forces located in the Green Zone, where he had been

held since March 2014, to the Al-Khadimiya prison north of Baghdad. According to the

source, he was still not allowed to receive visits from his family or his lawyer. Moreover,

access to the detention centre was particularly difficult as it was under the control of the

Shia militia groups operating with the support of the government authorities. Mr. Al-

Alwani’s family was reportedly concerned about his conditions of detention and fears that

he may be subjected to reprisals for his Sunni background.

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21.

In the light of the above information, the source submits that Mr. Al-Alwani’s

detention falls within categories I, II and III of the categories applicable to the consideration

of cases by the Working Group.

Category I: absence of legal basis justifying the deprivation of liberty

22.

Article 9 (1) of the Covenant provides that “no one shall be deprived of his liberty

except on the grounds and in accordance with such procedure as are established by law”.

However, according to the source, Mr. Al-Alwani’s detention lacks a legal basis for two

reasons: he was secretly detained without charges for one month; and his detention violates

Iraqi constitutional law, which provides for immunity from arrest to members of the

Council of Representatives.

23.

Mr. Al-Alwani was arrested on 28 December 2013 and detained in a secret location

until 27 January 2014, when he first appeared before the Public Prosecutor of the Central

Criminal Court. During that time, his family, lawyer and members of the Council of

Representatives were unable to obtain any information on his whereabouts or on the

charges pending against him.

24.

The source submits that Mr. Al-Alwani’s secret detention from 28 December 2013

to 27 January 2014 therefore represents a violation of articles 9 of the Universal

Declaration of Human Rights and of the Covenant and was devoid of any legal basis.

25.

Furthermore, as a member of the Council of Representatives, Mr. Al-Alwani was

entitled to immunity from arrest and detention, as established under constitutional law.

Article 63.2.b of the Constitution prohibits the arrest of a member of parliament during his

legislative term, unless the decision to lift the immunity is taken “by an absolute majority of

the Council” if accused of a felony, or if the person is caught committing a felony in

flagrante delicto.

26.

The source reports that the Council of Representatives was, however, never

informed of the decision to arrest and detain Mr. Al-Alwani and never took a decision as to

whether to lift his immunity. On the contrary, the Council was only able to obtain

information about his whereabouts and the charges pending against him after he was first

brought to Court on 27 January 2014, one month after his arrest.

27.

Given that the constitutional guarantees for parliamentary immunity from arrest and

detention were violated in the present case, the source thus submits that the arrest and

detention of Mr. Al-Alwani is devoid of legal basis and violates article 9 (1) of the

Covenant, falling under category I.

28.

The source also wishes to highlight that the Inter-Parliamentary Union (IPU) issued

three resolutions regarding the case of Mr. Al-Alwani. In the first resolution, issued in

March 2014, it urged the Iraqi authorities to ensure that Mr. Al-Alwani’s fundamental

rights were fully respected and requested the provision of official information on his

whereabouts and that the parliamentary investigative committee be allowed to visit him in

detention. In a second resolution, adopted in January 2015, it urged the Iraqi judicial

authorities to lift the death penalty and called for investigations to be opened into

allegations of violations committed during the investigative phase and trial. In a third

resolution, issued in October 2015, it demanded the agreement by the Iraqi authorities to a

mission of the Committee of the Human Rights of Parliamentarians in Iraq to gather first-

hand information on Mr. Al-Alwani’s case and discuss it with the relevant authorities. At

the time of the submission by the source, IPU had not yet received a response from the Iraqi

authorities.

Category II: deprivation of liberty resulting from the exercise of the rights or freedoms

enshrined in the Covenant

29.

The source submits that Mr. Al-Alwani has been arbitrarily arrested and detained as

a result of his exercise of the right to freedom of opinion and expression. He had reportedly

been a vocal critic and opponent of government policies and a prominent supporter of the

peaceful demonstrators of Ramadi, which had denounced the government policy of

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marginalization of part of the Iraqi population, especially the discriminatory use of abusive

counter-terrorism measures against them.

30.

According to the source, the fact that the Minister for Defence had proposed to

release Mr. Al-Alwani in exchange for dismantling the protest site demonstrated that he had

been considered a leader who shared and voiced the concerns of his constituents and that

the Government had intended to take advantage of his status to end the peaceful protests. In

addition, more than 40 members of the Council of Representatives from the Al-Iraqiya bloc

resigned to protest against Mr. Al-Alwani’s arrest, requesting his release. The resigning

representatives claimed that the arrest had resulted from a political move calculated to

benefit Prime Minister Al-Maliki in the 2014 national elections by shutting down his rivals.

According to the source, the use of the Anti-Terrorism Law to neutralize political

opponents who publicly criticized government policies was common in Iraq, as in the case

of Tariq al-Hashimi, the former Vice President and leading member of the Al-Iraqiya

coalition, who had been sentenced to death for “terrorism” in absentia on the basis of

confessions extracted under torture of his employees.

31.

Because Mr. Al-Alwani’s arrest was the result of his political affiliation and his

condemnation of government policies, the source submits that it represents an unlawful

interference with his right to hold opinions and, more specifically, political opinions, as

guaranteed by articles 19 of the Universal Declaration of Human Rights and of the

Covenant. Therefore, Mr. Al-Alwani’s detention falls under category II.

Category III: non-observance of international fair trial norms

Violations occurring during the pretrial detention phase

32.

According to the source, Mr. Al-Alwani was arrested without being presented with

an arrest warrant or being informed of the reason for his arrest. Furthermore, no arrest

warrant was ever provided after the arrest, in violation of article 9 (2) of the Covenant. It is

noteworthy that article 17.2 of the Constitution provides that homes may not be entered,

searched or put in danger except by a judicial decision and in accordance with the law, and

that article 92 of the Iraqi Criminal Procedural Code states that no one may be lawfully

arrested without an arrest warrant or order. Both provisions were thus violated in the

present case.

33.

While neither Mr. Al-Alwani nor his lawyer have been informed of the exact

description of the incriminating acts or the charges brought against him, some officials have

claimed in the media that he had been “wanted on suspicion of terrorism”. The source

believes that this constitutes a violation of the right of Mr. Al-Alwani to the presumption of

innocence.

34.

Furthermore, as he was not allowed to communicate with his family or his lawyer

for the length of his detention, Mr. Al-Alwani’s incommunicado detention constitutes per

se a violation of the right to a fair trial, as he was placed outside the protection of the law

for a prolonged period of time.

35.

In addition to the denial of his right to challenge the lawfulness of his detention

before a judicial authority during the period of pretrial detention, Mr. Al-Alwani’s rights to

counsel and to prepare his defence were also violated. Indeed, he was prevented from

contacting his lawyer, who himself had been subjected to reprisals for representing Mr. Al-

Alwani.

Violations of fair trial guarantees committed during the trial phase

36.

The source highlights that, from the first hearing, Mr. Al-Alwani was hooded and

handcuffed when presented before the Public Prosecutor, thereby violating the right to a

fair and public hearing and the principle of equality of arms and presumption of innocence,

as enshrined in article 14 (1) of the Covenant.

37.

During the trial, the defence lawyer was prevented from cross-examining witnesses

for the prosecution, thus violating the guarantees of the right to defence, as enshrined in

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article 14 (3) (b) of the Covenant and article 19.4 of the Constitution, as well as in article

123. b.ii and 144 of the Criminal Procedural Code.

38.

In addition, the fact that Mr. Al-Alwani was reportedly tortured while he was

secretly detained during the investigation stage and consequently forced to sign official

documents without being allowed to read them represents a violation of article 5 of the

Universal Declaration of Human Rights and articles 7 and 10 of the Covenant. Moreover,

the confessions extracted under torture were reportedly admitted as evidence during his trial

and no investigation was opened into his allegations. The source submits that this

represents a clear violation of article 14 (3) (g) of the Covenant and article 13 of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment. Furthermore, it also violates both article 35.2 of the Constitution and article

127 of the Criminal Procedural Code, prohibiting torture and the use of any confession

made under duress.

39.

Finally, the source underlines that the imposition of the death penalty following a

flawed procedure violates article 6 (2) of the Covenant, which provides that the imposition

of the death penalty should not be contrary to other provisions of the Covenant. The source

also notes that the systematic issuance of death sentences in a flawed judicial system which

“presents significant risks of grievous and irreversible carriage of justice” has been

denounced by UNAMI as a violation of the right to life. Additionally, the Central Criminal

Court is reportedly notorious for seriously failing to meet international standards of due

process and fair trial, such as the heavy reliance on confessions obtained under torture or

the common denial of the right to defence, as witnessed in the present case. The source

highlights that these serious flaws in the administration of justice by the Court are of utmost

gravity considering that it has jurisdiction over “terrorism” cases, and that such accusations

are systematically used to silence members of the opposition or critics of the Government.

40.

Consequently, the source submits that the case of Mr. Al-Alwani demonstrates a

non-observance of international fair trial norms, giving his detention an arbitrary character,

thereby falling under category III.

Response from the Government

41.

On 16 January 2017, the Working Group transmitted the allegations from the source

to the Government under its regular communication procedure. The Working Group

requested the Government to provide detailed information by 17 March 2017 about the

current situation of Mr. Al-Alwani, and any comment on the source’s allegations.

42.

The Working Group also requested the Government to clarify the legal grounds

justifying his continued detention, as well as its compatibility with the obligations of Iraq

under international human rights law, and in particular with regard to the treaties ratified by

the State. Moreover, the Working Group called upon the Government to ensure Mr. Al-

Alwani’s physical and mental integrity.

43.

In its response dated 15 March 2017, the Government transmitted to the Working

Group as enclosures the case files of the Central Criminal Court in the two criminal

proceedings against Mr. Al-Alwani (No. 109/C1/2014 of 23 November 2014 and No.

607/C1/2016 of 10 May 2016). The Government did not elaborate on the documents other

than stating that they constituted the reply of the competent authority with regard to Mr. Al-

Alwani’s case.

Central Criminal Court of Iraq: Decision No. 109/C1/2014 of 23 November 2014

44.

The Government submits that, according to the first case file, a three-member panel

of judges convened on 22 November 2014 for trial in accordance with the Anti-Terrorism

Law No. 13 of 2005. The Court convened for the trial held in public, in the presence of the

General Prosecutor, Mr. Al-Alwani and his lawyer. The Court officially charged Mr. Al-

Alwani with the murder of Ali Obeid Alwan and the attempted murder of Ibrahim Mohsen

Jassem and Mothana Shamkhi Jibar. Mr. Al-Alwani denied the charges. The Court recorded

the testimonies of the defence witnesses, concluded the proceedings and issued its

judgment.

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45.

The Government contends that, according to the facts of the case summarized in the

judgment, anti-terrorism military forces had been dispatched to Anbar Province to execute

arrest warrants issued for terrorism charges against Mr. Al-Alwani and his brother, Ahmad

Suleiman al-Alwani, on the basis of intelligence reports about their presence with two other

fugitives in Mr. Al-Alwani’s residence. Upon arrival, the military forces came under

intense gunfire from the house. The commander called upon those inside to cease firing and

identified his forces as the Iraqi army, but they continued to take fire. The military forces

had to fire back and storm the residence.

46.

The clashes inside the house and in the yard reportedly caused multiple deaths and

injuries, including the persons named in paragraph 44 above. One of the shooters, who was

disguised as a woman and who later turned out to be Mr. Al-Alwani, was arrested in

possession of an empty Kalashnikov rifle. Four grenades and three additional rifles were

also found in the house.

47.

The seized rifles were sent to the Directorate of Criminal Evidence Investigations.

According to the Directorate, the rifles had recently discharged smokeless gunpowder,

including the one used by Mr. Al-Alwani. The Directorate reportedly further stated that the

key elements in the discharge of weapons had been discovered on Mr. Al-Alwani’s clothes.

The Government contends that the two reports clearly indicated that Mr. Al-Alwani had

fired at the murdered and the two injured persons.

48.

The judgment of the Court included that it had heard the testimonies of the witnesses

in the present and other separate cases. Those statements had been registered during the

investigation. The witnesses affirmed that Mr. Al-Alwani had taken part in shooting at the

military forces.

49.

The Court examined the judicial arrest warrants that the military forces had

executed, including the one for Mr. Al-Alwani. It also reviewed Mr. Al-Alwani’s

statements during the investigation and proceedings, in which he confessed that he had

been present at the crime scene and that his brother had been wanted because of a terrorist

charge against him. The Government claims that Mr. Al-Alwani also confessed to

purchasing prohibited weapons but denied shooting at the military forces.

50.

According to the Government, the Court therefore found Mr. Al-Alwani guilty on

the charge of murder and the two charges of attempted murder. The Court sentenced Mr.

Al-Alwani to death by hanging for the crime of murder, and Mr. Al-Alwani’s detention

period between 28 December 2013 and 22 November 2014 was taken into consideration.

The Government contends that Mr. Al-Alwani and his lawyer were given the right to appeal

to the Federal Court of Cassation within 30 days from the issuance of the judgment. The

Court also handed down to Mr. Al-Alwani two life sentences, for the attempted murder of

Mothana Shamkhi Jibar and the attempted murder of Ibrahim Mohsen Jassem. The Court

ordered the seized weapons to be confiscated and deposited by the competent military

authorities after the finalization of the verdict. The civil plaintiffs, the injured and the

Counter Terrorism Forces were granted the right to ask for compensation after the

finalization of the verdict. The verdict was issued, read and explained in public on 23

November 2014.

Central Criminal Court of Iraq: Decision No. 607/C1/2016 of 10 May 2016

51.

The Government also submits that, according to the second case file, a three-

member panel of judges convened on 10 May 2016 for trial in accordance with the Anti-

Terrorism Law No. 13 of 2005. The court convened in public in the presence of the General

Prosecutor, Mr. Al-Alwani and his lawyer.

52.

The Court charged Mr. Al-Alwani with inciting violence against the security forces

and the Iraqi people and using violence and threats to stir up sectarian strife or civil war or

sectarian infighting with his speech at the sit-in square in Ramadi, in accordance with the

provisions of article 4 (1) read in conjunction with article 2 (4) of the Anti-Terrorism Law

No. 13 of 2005. Mr. Al-Alwani reportedly denied the charge. After hearing the prosecutor

and defence attorney read out their statements, the Court concluded proceedings and issued

its judgment.

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53.

The Government contends that, according to the facts of the case summarized in the

judgment, Mr. Al-Alwani gave speeches at the so-called sit-in squares in Ramadi, Anbar

Province, in which he incited violence against the security forces and the Iraqi people and

used violence and threats to stir up sectarian strife or civil war or sectarian infighting with

the aim of destabilizing the nation for terrorist purposes.

54.

According to the Government, the Court admitted as evidence Mr. Al-Alwani’s

confessions stating that he had made hate speeches, as well as the confession of the

defendant Karim Shaker in his capacity as a witness supported by DVDs and photographs

showing the sit-in area, the incitement by Mr. Al-Alwani of the people to attack security

forces and his encouragement of sectarian strife. The Government claims that the evidence

was sufficient for the Court to convict Mr. Al-Alwani, and that he had confessed that he

had given speeches inciting sectarian violence and strife and murder of security forces at all

stages of the investigation, preliminary and judicial, and before the Court. The Court

therefore convicted him of violating the provisions of article 4 (1) read in conjunction with

article 2 (4) of the Anti-Terrorism Law No. 13 of 2005.

55.

The Court subsequently sentenced Mr. Al-Alwani to death by hanging for inciting

violence against the security forces and the Iraqi people and using violence and threats to

stir up sectarian strife or civil war or sectarian infighting with his speech at the sit-in square

in Ramadi, in accordance with the Anti-Terrorism Law of 2005. Mr. Al-Alwani and his

lawyer were given the right to appeal to the Federal Court of Cassation within 30 days from

the issuance of the judgment. The verdict was issued, read and explained in public on 10

May 2016.

Further comments from the source

56.

The response received from the Government of Iraq concerning the two judgments

by the Central Criminal Court was transmitted to the source for comments on 16 March

2017. In its comments of 10 April 2017, the source first argues that the second judgment

(No. 607/C1/2016 of 10 May 2016) was not relevant to the present submission to the

Working Group, but it chose to clarify further the allegations presented in that judgment.

57.

The source points out that the judgment of 10 May 2016 was vague as it did not

clearly specify facts and occasions relating to the speeches of Mr. Al-Alwani in which he

allegedly incited violence, but instead merely stated that he had given speeches at the so-

called sit-in squares in Ramadi, Anbar Province. The source adds that a parliamentary

committee mandated to investigate Mr. Al-Alwani’s alleged hate speech during the Al-

Anbar protests had exonerated him.

58.

The source also recalls that Mr. Al-Alwani was arrested on 28 December 2013 in the

context of the ongoing protests and that, the following day, the Minister for Defence

declared that if protests were to cease within two days, Mr. Al-Alwani would be released.

The source reiterates that this declaration revealed the intention of the Government to use

Mr. Al-Alwani’s arrest as a tool to shut down the peaceful protests in Ramadi. As the

protests continued, on 30 December 2013, security forces started to bulldoze the sit-in site,

and the Iraqi security forces reportedly used violence to repress the protest, firing live

bullets at the protesters, leaving at least 17 people dead. The source also repeats its

argument in paragraph 30 above with regard to the resignation of more than 40 members of

the Council of Representatives from the Al-Iraqiya bloc.

59.

According to the source, it was therefore clear that the charges of incitement to

hatred and violence against Mr. Al-Alwani had been completely politically motivated, and

that he had been sentenced for his exercise of the right to freedom of opinion and

expression, especially in the light of the fact that he had been protected by parliamentary

immunity.

60.

The source further adds that the Central Criminal Court sentenced Mr. Al-Alwani to

death for the mere act of “incitement” in accordance with the provisions of article 4 (1) read

in conjunction with article 2 (4) of the Anti-Terrorism Law No. 13 of 2005. The source

submits that this was a violation of article 6 (2) of the Covenant, given that “incitement”

does not qualify as a “most serious crime”, the only type of crime for which capital

punishment is allowed under that article.

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61.

Moreover, the source notes that the vaguely worded Anti-Terrorism Law of 2005

came under criticism from the Human Rights Committee for its broad definition of

terrorism. The Committee recommended that counter-terrorism measures be restricted in

order to be fully compatible with the Covenant (see CCPR/C/IRQ/CO/5, para. 9).

62.

With regard to the first judgment (No. 109/C1/2014 of 23 November 2014), the

source acknowledges that it concerned the facts it had referred to in its initial submission.

In that judgment, the Central Criminal Court sentenced Mr. Al-Alwani to death on 23

November 2014 in accordance with the provisions of article 406 (1) (h) of the Criminal

Procedural Code rather than article 4 of the Anti-Terrorism Law.

63.

The source recalls that, on 28 December 2013, a task force composed of officers of

Special Weapons and Tactics units and the Counter Terrorism Forces stormed Mr. Al-

Alwani’s house, firing live bullets. Contrary to the judgment, the source submits that the

security forces did not provide any clear explanation as to their identity. Mr. Al-Alwani’s

security guards opened fire in response to an armed attack by an unknown force, solely for

the purpose of protecting Mr. Al-Alwani and themselves.

64.

The source also states that, contrary to the assertion made in the judgment that

military forces had been dispatched to Anbar Province to execute arrest warrants, Mr. Al-

Alwani was not provided with an arrest warrant at the moment of his arrest, nor were his

relatives given any explanations as to the reasons for the raid or arrest.

65.

As to the findings in the judgment that four grenades and three more rifles were

found inside the house, the source reasons that this was only logical given that Mr. Al-

Alwani had been provided with a protection unit, evidently well-armed, by the Government

as a sitting member of the Council of Representatives.

66.

With regard to Mr. Al-Alwani’s supposed “confessions” cited in the judgment, the

source further notes that the judgment ignored the fact that he was forced to sign them

under torture without even reading them beforehand.

67.

The source further contends that the judgment made reference to several other pieces

of evidence in addition to Mr. Al-Alwani’s confessions but dismissed all the exculpatory

evidence. The source argues that the Court simply accepted at face value the version of

events provided by the Government without even hearing from the defence witnesses. The

source also submits that scientific experts mandated to analyse forensic or other type of

evidence in Iraq could not be considered independent as they reportedly routinely confirm

the allegations made by the prosecution.

68.

The source adds that the response from the Government lacked information

rebutting the allegations of violations of fair trial rights, such as Mr. Al-Alwani’s lengthy

incommunicado detention and the denial of his right to a defence. The Government also

failed to provide information concerning the serious allegations of harassment against Mr.

Al-Alwani’s first lawyer, Badee Arif Izat, who reportedly withdrew from the case as a

consequence.

Discussion

69.

At the outset, the Working Group expresses its appreciation to both the source and

the Government for their submissions in relation to the arrest, conviction and imprisonment

of Mr. Al-Alwani, as well as their political and legal context.

70.

The Working Group will consider in turn each of the categories applied by it,

mindful that it is entitled to assess the laws and proceedings of the court to determine

whether they meet the relevant rules and standards of international law.

71.

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 for breach of

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

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

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

72.

The Working Group recalls that, where it is alleged that a person has not been

afforded, by a public authority, certain procedural guarantees to which he or she was

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10

entitled, the burden of proof should rest with the public authority, because the latter is in a

better position to demonstrate that it has followed the appropriate procedures and applied

the guarantees required by law.1

Category I

73.

The Working Group will first consider whether the deprivation of liberty of Mr. Al-

Alwani falls under category I of the categories applicable to the cases under consideration

by the Working Group.

74.

The source has alleged that, following a gunfire battle, in which his brother and five

of his bodyguards were killed, Mr. Al-Alwani was arrested on 28 December 2013 without

being presented with an arrest warrant or being informed of the reasons for his arrest. The

source has also alleged that, although some officials claimed in the media that Mr. Al-

Alwani had been “wanted on suspicion of terrorism”, they failed to provide him or his

lawyer with an exact description of the incriminating acts or charges brought against him.

In addition, on 27 January 2014, one month after his arrest, Mr. Al-Alwani first appeared

before the Public Prosecutor of the Central Criminal Court, where he was charged with

“assault on military assets and killing and injuring security forces for terrorist ends” for the

murder and attempted murder of members of the security forces under article 4 of the Iraqi

Anti-Terrorism Law No. 13 of 2005.

75.

While the judgment (No. 607/C1/2016 of 10 May 2016), as transmitted by the

Government to the Working Group, stated that the security forces had been dispatched to

Mr. Al-Alwani’s residence to execute arrest warrants for him and his brother, the

Government has not substantiated its contention in order to refute the prima facie

allegations put forward by the source.

76.

The Working Group finds that the Government has thus failed to take the necessary

formal procedures to establish the legal basis for Mr. Al-Alwani’s arrest by obtaining a

judicially approved warrant. The Working Group further observes that his subsequent

incommunicado detention for a period of one month without being presented before the

judge is equally wanting in legal foundation, in violation of article 9 (3) of the Covenant.

77.

In that respect, the Working Group notes with deep concern a series of cases over

the past few years in which the Government of Iraq has subjected its citizens and foreign

nationals to secret detention or incommunicado detention.

2 Such practices of

incommunicado detention effectively place the victims outside the protection of the law and

deprive them of any legal safeguards thereby seriously curtailing their ability to challenge

their detention. The Working Group in its practice has always consistently argued that

holding persons incommunicado breaches the right to challenge the lawfulness of detention

before a judge.3

78.

In the light of the foregoing, the Working Group concludes that Mr. Al-Alwani’s

arrest and incommunicado detention between 28 December 2013 and 27 January 2014

lacks a legal basis in violation of article 9 of the Universal Declaration of Human Rights

and article 9 (1) and 9 (3) of the Covenant, falling under category I.4

79.

Furthermore, the Government has failed to take the necessary formal procedures to

establish the legal basis for the arrest and detention of a sitting member of the Council of

Representatives. In the present case, it is evident that Mr. Al-Alwani was denied his

immunities as a member of the Iraqi Parliament, in view of article 63 (2) of the

Constitution.

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

Judgment, International Court of Justice Reports 2010, p. 661, para. 55; and opinions No. 41/2013,

para. 27, and 59/2016, para. 61.

2 See opinions No. 29/2016, No. 20/2016 and No. 5/2014.

3 See, e.g., opinions No. 53/2016 and No. 56/2016.

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

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11

80.

The Working Group recalls that article 9 (1) of the Covenant states that: “no one

shall be deprived of his liberty except on such grounds and in accordance with such

procedure as are established by law”. Therefore, for deprivation of liberty to be considered

lawful or not arbitrary, the previously established legal procedure must be respected.5 In

that context, the Human Rights Committee has stated that, as part of the procedures for

carrying out deprivation of liberty, officials authorized to arrest should be identified.6

81.

The purpose of parliamentary immunity and the procedure for withdrawing it prior

to the detention or prosecution of lawmakers is to protect the legislative process from

judicial abuses. Against that backdrop, in countries whose laws establish specific grounds

and a special procedure for the deprivation of liberty and/or prosecution of lawmakers,

those standards specify “such grounds and in accordance with such procedure as are

established by law”. As mentioned above, when the legal order requires the withdrawal of

immunity as a precondition for depriving a person of liberty, that requirement must be

observed. Once immunity has been withdrawn, the authorities are empowered to order a

person’s detention. Failure to withdraw immunity results in arbitrary detention, as the

detention was not ordered by an authorized judicial official and it constitutes a violation of

the right of due process in criminal proceedings.

82.

Parliamentary immunity can be divided into the privilege from legal actions for

statements made in the exercise of parliamentary functions (parliamentary non-

accountability) and the privilege of personal immunity from deprivation of liberty for

criminal charges (parliamentary inviolability) within the domestic jurisdiction.7 The two

privileges roughly correspond to the functional immunity and personal immunity accorded

to foreign state officials in international law.

83.

Parliamentary inviolability has indeed served long as the bulwark against the

arbitrary arrest or detention of the people’s elected representatives by other State organs.

However, unfortunately, there have been numerous instances in the past of legislators

facing various forms of persecution, including arbitrary deprivation of liberty. 8 The

circumstances surrounding Mr. Al-Alwani’s arrest and detention amply justify the

guarantee of parliamentary inviolability enshrined in national constitutions, including that

of Iraq, and in article 9 (1) of the Covenant.

84.

As is customary, parliamentary inviolability under the Iraqi Constitution is not

absolute. A member of the Council of Representatives may be arrested if the Council lifts

the immunity by a majority vote or if he is caught in flagrante delicto. The Government

could therefore have legally based the arrest and detention of Mr. Al-Alwani, a member of

the Council of Representatives, on those exceptional grounds.

85.

However, in the present case, it cannot be said that Mr. Al-Alwani was caught in

flagrante delicto in the commission of “assault on military assets and killing and injuring

security forces for terrorist ends”. Instead, security forces reportedly stormed his residence

in the middle of the night.

86.

It also cannot be said that the Council of Representatives voted by an absolute

majority to lift Mr. Al-Alwani’s personal immunity in accordance with article 63 (2) (b) of

the Constitution. On the contrary, the Council has officially asked the Government for

information regarding his whereabouts or charges against him to no avail and its members

have not been allowed to visit him in prison.

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

11.

6 Ibid., para. 23.

7 See “Parliamentary Immunity: Background Paper prepared by the Inter-Parliamentary Union”, United

Nations Development Programme Initiative on Parliaments, Crisis Prevention and Recovery in

association with the Inter-Parliamentary Union (September 2006). Available from www.agora-

parl.org/sites/default/files/UNDP-IPU%20-%20Parliamentary%20Immunity%20-%202006%20-

%20EN%20-%20Parliamentary%20Institution.pdf.

8 See IPU decisions on human rights cases by the Governing Council and the Committee on the Human

Rights of Parliamentarians, available from www.ipu.org/iss-e/hr-cases.htm.

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12

87.

The Working Group consequently finds that the deprivation of liberty of Mr. Al-

Alwani, in the absence of the implementation of the corresponding procedure for the

removal of his immunity, was carried out in violation of applicable Iraqi law under its

Constitution as well as legal standards deriving from international instruments. The

Working Group therefore concludes that his deprivation of liberty is in violation of the

rights set out in article 9 of the Universal Declaration of Human Rights and article 9 (1) of

the Covenant. As such, it also adds weight to the view that the deprivation of liberty of Mr.

Al-Alwani falls under category I.

Category III

88.

With regard to category III, the Working Group will now consider whether the

deprivation of liberty of Mr. Al-Alwani is in violation of the international norms of due

process and guarantees to a fair trial, in particular articles 3, 5, 6, 9, 10 and 11 of the

Universal Declaration of Human Rights and articles 7, 9, 10 and 14 of the Covenant. The

relevant yet not exhaustive factual and legal considerations, which have not been credibly

disputed by the Government, are as follows:

(a)

On 28 December 2013, Mr. Al-Alwani was arrested without an arrest

warrant, in violation of the national procedure established by law, including article 17 (2) of

the Constitution and article 92 of the Criminal Procedural Code (article 9 of the Universal

Declaration of Human Rights and article 9 (1) of the Covenant);

(b)

Mr. Al-Alwani was not brought promptly before a judge, but instead held

incommunicado at a secret place for one month (see para. 76 above), which effectively

nullified his right to recognition everywhere as a person before the law (articles 6 and 9 of

the Universal Declaration of Human Rights and articles 9 (3), 9 (4) and 16 of the

Covenant);

(c)

Mr. Al-Alwani’s right to presumption of innocence was violated as some

officials claimed in the media that he had been “wanted on suspicion of terrorism”9 (article

11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the Covenant);

(d)

Mr. Al-Alwani was interrogated without the presence of his lawyer in

violation of article 19 (4) of the Constitution and articles 123 (b) (2) and (c) and 144 of the

Criminal Procedural Code ensuring the right to an attorney in all phases of investigation

and trial10 (articles 10 and 11 (1) of the Universal Declaration of Human Rights and article

14 (1) and (3) (b) and (d) of the Covenant);

(e)

Mr. Al-Alwani was not allowed to contact or receive visits from his lawyer to

prepare his defence but could only briefly talk to him in court in the constant presence of

members of the Iraqi Special Forces, which violated his right to have adequate time and

facilities for the preparation of his defence and to communicate with counsel of his own

choosing (articles 10 and 11 (1) of the Universal Declaration of Human Rights and article

14 (1) and (3) (b) and (d) of the Covenant);

(f)

The experience of Mr. Al-Alwani’s first lawyer, Mr. Izat, who was arrested

and taken by security forces to a secret location and questioned for 12 hours while

blindfolded, severely violated Mr. Al-Alwani’s right to defend himself through legal

assistance of his own choosing. The Government did not provide any information with

regard to the allegations of harassment against the lawyer, who eventually withdrew from

the case (article 11 (1) of the Universal Declaration of Human Rights and article 14 (3) (b)

and (d) of the Covenant);

9 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. See Human Rights

Committee, general comment No. 35, para. 30. See also Human Rights Committee, Gridin v. Russian

Federation, Communication No. 770/1997, Views adopted on 20 July 2000, paras. 3.5 and 8.3.

10 Human Rights Committee, Bondar v. Uzbekistan, Communication No. 1769/2008, 25 March 2011,

para. 7.4.

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13

(g)

Mr. Al-Alwani was forced to sign a confession under torture without being

able to read the content. In addition, the confession was accepted as a primary source of

evidence in his conviction by the Central Criminal Court (articles 10 and 11 (1) of the

Universal Declaration of Human Rights and article 14 (1) and (3) (g) of the Covenant);

(h)

The Court of Cassation postponed its decision indefinitely after a hearing on

12 November 2015. Furthermore, a decision has reportedly still to be made, more than three

years after the initial arrest of Mr. Al-Alwani, in violation of his right to be tried without

undue delay (article 11 (1) of the Universal Declaration of Human Rights and article 14 (3)

(c) of the Covenant).

89.

The Working Group underlines that the use of confessions extracted from torture is

prohibited. The Working Group concurs with the Human Rights Committee, when it stated,

in paragraph 41 of its general comment No. 32 (2007) on the right to equality before courts

and tribunals and to a fair trial, that:

… article 14, paragraph 3 (g), guarantees the right not to be compelled to testify

against oneself or to confess guilt … A fortiori, it is unacceptable to treat an accused

person in a manner contrary to article 7 of the Covenant in order to extract a

confession. Domestic law must ensure that statements or confessions obtained in

violation of article 7 of the Covenant are excluded from the evidence … .

90.

The Working Group takes note of the judgment by the International Court of Justice

in the case concerning Questions relating to the Obligation to Prosecute or Extradite

(Belgium v. Senegal), in which the Court expressed the opinion that the prohibition of

torture was part of customary international law and it had become a peremptory norm (jus

cogens) (para. 99).11 The Working Group further notes that the prohibition of torture is

codified in article 5 of the Universal Declaration of Human Rights and articles 7 and 10 of

the Covenant, and in the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment.

91.

The Working Group notes that the death sentence passed against Mr. Al-Alwani on

the basis of a confession extracted under torture is a particularly grave miscarriage of

justice and additionally engages violation of article 6 (2) of the Covenant, stipulating that a

death sentence may be imposed only for “the most serious crimes” and only if it is not

contrary to the provisions of the Covenant. According to the safeguards guaranteeing

protection of the rights of those facing the death penalty, capital punishment may be

imposed only when the guilt of the person charged is based upon clear and convincing

evidence leaving no room for an alternative explanation of the facts.12 This is hardly the

case in relation to the trial and conviction of Mr. Al-Alwani.

92.

The Working Group urges the Government to adopt effective measures to guarantee

that coerced confessions or statements are inadmissible in practice, that the burden of proof

is on the prosecution and the courts where there is an allegation of a statement made under

torture and that sanctions are taken against judges who fail to respond appropriately to

allegations of torture raised during judicial proceedings in accordance with

recommendations of the Committee against Torture (see CAT/C/IRQ/CO/1, para. 22).

93.

With regard to legal assistance, the Working Group notes that Mr. Al-Alwani was

interrogated without the presence of his lawyer and was not allowed to contact or receive

visits from his lawyer to prepare his defence. The Working Group underlines that denial of

legal assistance is a violation of article 14 (3) (b) of the Covenant and principle 17.1 of the

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

Imprisonment, and principle 9 of the United Nations Basic Principles and Guidelines on

Remedies and Procedures on the Rights of Anyone Deprived of their Liberty to Bring

Proceedings Before a Court.

11 See www.icj-cij.org/files/case-related/144/144-20120720-JUD-01-00-BI.pdf.

12 The safeguards guaranteeing protection of the rights of those facing the death penalty, approved by

the Economic and Social Council in its resolution 1984/50 of 25 May 1984, para. 4.

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14

94.

The Working Group also notes with serious concern that the first lawyer of Mr. Al-

Alwani was reportedly harassed by security forces and eventually withdrew from the case,

in violation of his client’s right to defend himself through legal assistance of his own

choosing. The Working Group underlines that it is the legal and positive duty of the State to

protect everyone on its territory or under its jurisdiction against any human rights violation

and to provide remedies whenever a violation still occurs. The Working Group recalls in

particular that principle 9 of the United Nations Basic Principles and Guidelines on

Remedies and Procedures on the Rights of Anyone Deprived of their Liberty to Bring

Proceedings Before a Court states that “[l]egal counsel shall be able to carry out their

functions effectively and independently, free from fear of reprisal, interference,

intimidation, hindrance or harassment”.13

95.

In the light of the foregoing, the Working Group concludes that the 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 Iraq,

is of such gravity as to give the deprivation of liberty of Mr. Al-Alwani an arbitrary

character, falling under category III.

96.

Given the concerns expressed in the present opinion in relation to the violation of

fair trial rights, the Working Group recalls the various resolutions of the General

Assembly14 in which the Assembly called upon States that still maintain the death penalty

to establish a moratorium on executions with a view to abolishing it.

Category II

97.

The Working Group will now consider whether Mr. Al-Alwani’s arrest and

detention resulted from his legitimate exercise of his human rights and fundamental

freedoms, as stated in category II of the categories applicable to the consideration of cases

by the Working Group.

98.

The Working Group notes that, from December 2012, Iraqi Sunnis had reportedly

been holding peaceful demonstrations and sit-ins in Ramadi, Anbar Province, against their

marginalization under government policy, including the discriminatory and abusive use of

counter-terrorism measures targeting them.

99.

The Working Group further considers the fact that Mr. Al-Alwani, in his capacity as

a Sunni opposition member of the secular Al-Iraqiya bloc and head of the Parliament’s

Economic and Investment Committee, was a vocal and well-known critic of former Prime

Minister Al-Maliki’s alleged corruption and sectarian policies.

100.

Given the peaceful nature of the demonstrations and Mr. Al-Alwani’s political

activism, the Working Group finds that Mr. Al-Alwani’s second trial, conviction and death

sentence (No. 607/C1/2016 of 10 May 2016) for his speeches at the sit-in square in Ramadi

further violated his right to freedom of expression and peaceful assembly. Although the

judgment claims that Mr. Al-Alwani had incited violence and terror with his speeches, there

is no description let alone evaluation of the details of his speech; it is not even clear when

or where he spoke or to whom. A parliamentary committee mandated to investigate the

incident reportedly exonerated Mr. Al-Alwani’s speech, and the Government has failed to

question it in its response.

101.

In addition, Mr. Al-Alwani’s conviction, under the Anti-Terrorism Law No. 13 of

2005 for his speeches at the sit-in square in Ramadi, raises a particular concern about the

vagueness of the legislation.

102.

Vaguely and broadly worded laws have a chilling effect on the exercise of the right

to freedom of expression, with the potential for abuse. In that vein, the Working Group

notes that the Human Rights Committee raised concern at the broad definition of

“terrorism” in the Anti-Terrorism Law, which is susceptible to wide interpretation, and

13 See also opinion No. 14/2017, para. 55.

14 General Assembly resolutions 62/149 (2007), 63/168 (2008), 65/206 (2010) and 67/176 (2012).

A/HRC/WGAD/2017/36

15

urged the Government to take the steps necessary to address the breadth of the definition of

terrorism (see CCPR/C/IRQ/CO/5, paras. 9-10).

103.

The Working Group has warned from its early years that anti-terrorism laws “by

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

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

consequence that “[l]egitimate democratic opposition, as distinct from violent opposition,

becomes a victim in the application of such laws” (see E/CN.4/1995/31, para. 25 (d)). The

Working Group therefore concludes that Mr. Al-Alwani’s deprivation of liberty resulted

from the violation of his right to political participation.

104.

In view of the circumstances, the Working Group concludes that Mr. Al-Alwani’s

arrest and detention resulted from the exercise of his right to freedom of opinion and

expression and of peaceful assembly, guaranteed by articles 19, 20 and 21 of the Universal

Declaration of Human Rights and articles 19, 21 and 25 of the Covenant, falling within

category II of the categories applicable to the consideration of cases submitted to the

Working Group.

Category V

105.

The Working Group will now examine whether Mr. Al-Alwani’s deprivation of

liberty constitutes illegal discrimination under international law, falling under category V.

106.

The Working Group notes that Mr. Al-Alwani has reportedly been held at the Al-

Khadimiya prison under the control of Shia militia groups operating with the support of the

governmental authorities since March 2014 without access to his family or lawyer and

where he is feared to be subjected to reprisals because of his Sunni background.

107.

The Working Group is of the view that Mr. Al-Alwani’s flawed arrest, trial,

conviction and death sentence is part of an attempt by the Government to suppress the

legitimate criticism of widespread corruption and the grievances generated by its

discriminatory and abusive use of counter-terrorism measures to marginalize its Sunni

citizens. The proposal by the then-Minister for Defence, Saadoun al-Dulaimi, to release Mr.

Al-Alwani in exchange for the end of the Ramadi protest adds credibility to the charge of

religiously or politically motivated persecution.15 The Working Group believes that the

circumstances surrounding the deprivation of liberty of Mr. Al-Alwani also strongly

suggest that he was targeted and discriminated against for his Sunni background and

political opinions and activities.

108.

The Working Group notes that Mr. Al-Alwani’s arrest occurred four months before

the national elections were to take place, and that more than 40 parliamentarians from the

opposition Al-Iraqiya bloc resigned in protest. That timing meant that he could not

campaign effectively for himself or his colleagues to be elected, and the electors could thus

not freely form their opinion or choose their leaders.

109.

Given the above observations, the Working Group considers that Mr. Al-Alwani’s

deprivation of liberty constitutes a violation of article 2 of the Universal Declaration of

Human Rights and articles 2 (1) and 26 of the Covenant on the grounds of discrimination

based on religion and political opinion that aimed at and resulted in ignoring the equality of

human beings, falling under category V.

110.

The Working Group notes that, under certain circumstances, widespread or

systematic imprisonment or other severe deprivation of liberty in violation of the

fundamental rules of international law may constitute crimes against humanity.

15 The Working Group reiterates that all States have a duty to take effective measures to prevent and

eliminate discrimination on the grounds of religion or belief in the recognition, exercise and

enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social

and cultural life. See article 4 (1) of the Declaration on the Elimination of All Forms of Intolerance

and of Discrimination Based on Religion or Belief, adopted by the General Assembly in its resolution

36/55 of 25 November 1981.

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16

111.

Given that the issues of torture, counter-terrorism measures and the reprisals and

harassment against a lawyer are involved in the present case, the Working Group wishes to

refer these matters to the attention of the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion

and protection of human rights and fundamental freedoms while countering terrorism and

the Special Rapporteur on the independence of judges and lawyers.

Disposition

112.

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

The deprivation of liberty of Ahmad Suleiman Jami Muhanna al-Alwani, being in

contravention of articles 2, 3, 5, 6, 9, 10, 11, 19, 20 and 21 of the Universal

Declaration of Human Rights and of articles 2, 6, 7, 9, 14, 16, 19, 21, 25 and 26 of

the International Covenant on Civil and Political Rights, is arbitrary and falls within

categories I, II, III and V.

113.

Consequent upon the opinion rendered, the Working Group requests the

Government of Iraq to take the steps necessary to remedy the situation of Ahmad Suleiman

Jami Muhanna al-Alwani without delay and bring it into conformity with the standards and

principles set forth in the international norms on detention, including the Universal

Declaration of Human Rights and the International Covenant on Civil and Political Rights.

114.

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

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

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

international law.

115.

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

refers the case to the attention of the Special Rapporteur on torture, the Special Rapporteur

on terrorism and the Special Rapporteur on the independence of judges and lawyers for

appropriate action.

116.

The Working Group further brings to the attention of the Government the calls for

reform of a broad definition of terrorism susceptible to wide interpretation and mandatory

death penalty for a wide range of activities defined as terrorist acts in the Anti-Terrorism

Law No. 13 of 2005 (see CCPR/C/IRQ/CO/5, para. 9).

Follow-up procedure

117.

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

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

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

(a)

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

(b)

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

Alwani;

(c)

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

Alwani’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 Iraq with its international obligations in line with the

present opinion;

(e)

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

118.

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.

119.

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

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17

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.

120.

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.16

[Adopted on 28 April 2017]

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