Opinion; Subjects: BANGLADESH, 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.17-16203(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-ninth session, 21-25 August 2017
Opinion No. 45/2017 concerning Hasnat Karim (Bangladesh)1
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 19 May 2017 the
Working Group transmitted to the Government of Bangladesh a communication concerning
Hasnat Karim. The Government has not replied to the communication. Bangladesh 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,
1 In accordance with paragraph 5 of the methods of work of the Working Group, Elina Steinerte did not
participate in the discussion of the present case.
United Nations
A/HRC/WGAD/2017/45
General Assembly
Distr.: General
15 September 2017
Original: English
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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.
Hasnat Karim is a dual Bangladeshi and British citizen. He is married and has two
children. He used to be a lecturer at North South University, in Dhaka, and subsequently
became a director at his father’s engineering firm.
5.
According to the source, Mr. Karim and his family were at the Holey Artisan Bakery
in Dhaka on 1 July 2016 to celebrate his daughter’s thirteenth birthday. At approximately
9.20 p.m., a group of five armed gunmen attacked the restaurant. During the siege and its
aftermath, 20 individuals were killed and several more were held hostage. The source states
that Mr. Karim and his family survived the attack, as they had been able to prove that they
were Muslim by reciting verses of the Koran. The attackers had stated that they would not
hurt their fellow Muslims.
6.
The source reports that Mr. Karim’s uncle phoned him during the siege. The gunmen
asked Mr. Karim to call back his uncle and instruct him to inform the police that they
should not approach the bakery, otherwise the hostages would be killed. The source claims
that the gunmen then made Mr. Karim walk in front of them as a body shield as they tried
to secure the premises.
7.
At around 7 a.m. on 2 July 2016, the security services initiated an operation to free
the hostages. The gunmen and 2 police officers were killed and the remaining 13 hostages
were rescued. All of the surviving hostages were taken for questioning. The source reports
that all the hostages were released, except Mr. Karim and another individual who were
accused of involvement in the alleged terrorist attack. Mr. Karim was detained by the
Detective Branch, but the authorities initially refused to acknowledge that he was in their
custody.
8.
On 13 July 2016, the Detective Branch asked Mr. Karim’s wife to come to its
headquarters. After being interrogated for several hours, she was allowed a very short
supervised visit with Mr. Karim, along with his mother.
9.
On 3 August 2016, Mr. Karim’s family was summoned to the police station where
they were informed that Mr. Karim would be officially detained and brought before a court.
According to the source, the family was also told that after a three- or four-day remand
period, they could apply for bail and bring Mr. Karim home.
10.
On 4 August 2016, Mr. Karim was officially detained pursuant to section 54 of the
Code of Criminal Procedure and held on remand for a further eight days. Section 54 allows
the police to detain an individual without a warrant in nine different sets of circumstances.
The source refers to a landmark judgment of 24 May 2016 by the Appellate Division of the
Supreme Court of Bangladesh that was highly critical of the use of section 54 and upheld a
series of High Court guidelines aimed at ensuring that police powers of arrest without a
warrant were consistent with constitutional safeguards.
11.
On 13 August 2016, Mr. Karim was brought to court in connection with the attack
on the Holey Artisan Bakery. According to the source, law enforcement officials
misrepresented the circumstances of the arrest of Mr. Karim to the court. The source alleges
that the authorities tried to make his detention appear to be lawful by presenting him before
a magistrate and claiming that he had only been arrested on that day (13 August). Mr.
Karim was again held on remand, for eight days.
12.
According to the source, on 14 August 2016, the authorities froze the business bank
accounts of Mr. Karim’s father without any justification.
13.
On 22 August 2016, Mr. Karim was brought to court at the end of his remand period
and the police did not request a further period of remand for their investigations. The source
claims that Mr. Karim was sent to Keraniganj Prison without any charge having been
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brought against him. On 24 August 2016, the magistrates’ court denied his bail application
without citing proper grounds.
14.
On 2 September 2016, Mr. Karim was transferred from Keraniganj Prison to a level
four high-security building in Kashimpur Prison. The source emphasizes that, on 4 October
2016, two months after Mr. Karim was first brought before a court, he was finally informed
of the allegations against him, although no clear grounds were presented regarding his
continued detention. On 30 October 2016, a new bail application was denied by a district
court.
15.
The source alleges that while Mr. Karim is in detention, he is being denied his right
to have contact with his family and others:
(a)
Mr. Karim has been denied regular contact with his family. At the beginning
of his detention, he was held incommunicado for a few weeks and his family could not visit
him during that period. Following his appearance before the magistrates’ court, he was
permitted to see his family for a short and supervised visit two times per month;
(b)
Mr. Karim has not been allowed access to a lawyer since being detained on 2
July 2016. On 14 August 2016, a local lawyer went to the magistrates’ court on behalf of
Mr. Karim, but was pressured by the authorities to stop representing him;
(c)
On 4 November 2016, Mr. Karim was refused temporary guarded parole to
attend his father’s funeral service, even though this is a right usually afforded to convicted
prisoners, including those serving sentences for the most serious offences;
(d)
Until 13 February 2017, Mr. Karim was denied access to British consular
protection. He now has consular access, but it is being supervised by the Detective Branch.
As a result, no open discussion can take place between Mr. Karim and the representatives
of the British High Commission, for fear of repercussions;
(e)
Mr. Karim suffers from a heart condition, following an emergency cardiac
intervention in 2014, but is not receiving appropriate medication while in detention and has
not been assessed by a cardiologist.
16.
The source alleges that the authorities have issued false public statements regarding
Mr. Karim. In particular, the police falsely linked him with one of the gunmen at the Holey
Artisan Bakery, who was a student at the North South University in Dhaka. The police
claimed that Mr. Karim had been fired from his post as a lecturer at the university because
of his links to a “militant organization”. However, the source claims that Mr. Karim left the
position in order to work as a civil engineer with his father, and that the university
confirmed that Mr. Karim left his job voluntarily.
17.
The source emphasizes that the general situation in Bangladesh is dire with regard to
the democratic space and human rights protection, and refers to the widespread practice of
enforced disappearances and arbitrary detention. The source claims that the Government
has a well-documented practice of arresting political opponents, refusing them access to
lawyers or family and denying publicly that they have been arrested. According to the
source, the Government eliminates these opponents in unlawful ways, namely by: (a)
fabricating charges and “showing them as arrested” on the day of their appearance before
the court; (b) dropping them across the Indian border, where they are arrested and charged
for illegal entry or are simply not seen again; or (c) executing them in what is known as
“crossfire” shooting.
18.
The source submits that Mr. Karim has been denied fair trial guarantees and that his
deprivation of liberty is arbitrary under category III of the categories applied by the
Working Group. Specifically, the source submits that:
(a)
The arrest of Mr. Karim after the attack was unlawful and without any legal
basis. Mr. Karim was detained pursuant to section 54 of the Code of Criminal Procedure,
which itself violates article 9 of the Covenant;
(b)
Since 2 July 2016 Mr. Karim has been detained without any formal charges
having been brought against him, and he has been denied access to a lawyer and is being
denied regular contact with his family;
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(c)
There is no evidence pointing to the involvement of Mr. Karim in the alleged
terrorist attack, and any evidence produced may have been fabricated.
Response from the Government
19.
On 19 May 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 18 July 2017 regarding the current
situation of Mr. Karim. The Working Group also requested the Government to clarify the
legal provisions justifying his continued detention, as well as its compatibility with the
obligations of Bangladesh under international human rights law, particularly with regard to
the treaties that it has ratified. Moreover, the Working Group called upon the Government
to ensure Mr. Karim’s physical and mental integrity.
20.
The Working Group regrets that it did not receive a response from the Government
to this communication. The Government did not request an extension of the time limit for
its reply, as provided for in the Working Group’s methods of work.
Discussion
21.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
22.
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). In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source. The Working Group has received
several cases concerning Bangladesh in recent years which involved allegations similar to
those in the present case, that is, allegations of arbitrary and incommunicado detention, of
lengthy pretrial detention without charges, and of denial of the right to legal assistance and
access to family (see, for example, opinions Nos. 51/2013, 37/2013 and 66/2011). This
pattern of conduct provides additional credibility to the source’s claims in this case.
23.
The Government has not provided any evidence or documentation in response to the
Working Group’s request for information that would demonstrate any link between Mr.
Karim and the gunmen who committed the armed attack on the Holey Artisan Bakery on 1
July 2016. The Working Group therefore wishes to acknowledge that, when taken as a
hostage in the overnight siege, Mr. Karim was deprived of his liberty by the armed gunmen.
In addition, Mr. Karim was subsequently deprived of his liberty by government forces,
namely by the Detective Branch. The allegations relating to the arbitrary deprivation of
liberty committed by the Government are considered in turn below.
24.
The Working Group considers that there have been several violations of article 9 of
the Covenant during the arrest and detention of Mr. Karim. The source asserts, and the
Government has not contested, that there have been no charges brought against Mr. Karim.
Although Mr. Karim learned of the allegations against him on 4 October 2016, he has still
not been informed whether there are official charges, and if so, what those charges are,
even though it is now over a year since he was detained on 2 July 2016 after the hostage
crisis. The Working Group considers that this is contrary to Mr. Karim’s right under article
9 (2) of the Covenant to be promptly informed of the charges against him. By failing to
promptly notify Mr. Karim of the charges against him, the authorities have failed to invoke
a legal basis to justify his detention.2
25.
Further, the Working Group considers that Mr. Karim’s right to be brought promptly
before a judge or other officer authorized by law to exercise judicial power under article 9
(3) of the Covenant, and to take proceedings before a court under article 9 (4) of the
Covenant, have both been violated in the present case. The source reported that Mr. Karim
2 The Working Group considers that it does not have sufficient information to determine whether
section 54 of the Bangladeshi Code of Criminal Procedure also violates article 9 of the Covenant.
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was first brought before a court on 13 August 2016, six weeks after he was taken into
custody on 2 July 2016. The Human Rights Committee has stated in relation to article 9 (3)
of the Covenant that while the meaning of “promptly” may vary in each case, the delay in
bringing a detainee before a court should not exceed a few days from the time of arrest. The
Committee has also stated that:
In the view of the Committee, 48 hours is ordinarily sufficient to transport the
individual and to prepare for the judicial hearing; any delay longer than 48 hours
must remain absolutely exceptional and be justified under the circumstances.
Longer detention in the custody of law enforcement officials without judicial
control unnecessarily increases the risk of ill-treatment.3
26.
Moreover, as the source alleges and the Government has not denied, Mr. Karim has
not had regular access to his family, nor has he had access to a lawyer since 2 July 2016. He
has therefore had no practical means of challenging the legal basis of his detention under
article 9 (4) of the Covenant, either through his own efforts or with assistance from his
family or lawyer.
27.
Thus, the Working Group considers that there was no legal basis invoked to justify
the arrest and detention of Mr. Karim, and that his deprivation of liberty falls within
category I of the categories applied by the Working Group.
28.
In addition, the Working Group considers that the source’s allegations disclose
violations of Mr. Karim’s right to a fair trial. Specifically, Mr. Karim has been held in
pretrial detention for over a year, with applications for bail refused on at least two
occasions. The Working Group recalls that according to article 9 (3) of the Covenant,
pretrial detention should be the exception rather than the rule, and should be as short as
possible. Pretrial detention must be based on an individualized determination that it is
reasonable and necessary taking into account all the circumstances, for such purposes as to
prevent flight, interference with evidence or the recurrence of crime. Courts must examine
whether alternatives to pretrial detention, such as bail, would render detention unnecessary.4
As the source points out, and the Government has not contested, Mr. Karim’s bail
application on 24 August 2016 was denied without adequate reasons being given by the
magistrates’ court, and this falls short of the individualized determination required under
article 9 (3). According to article 9 (3), if Mr. Karim could not be tried within a reasonable
time, he is entitled to release, which has clearly not been respected in this case. The alleged
attempt by the authorities to present Mr. Karim as if he had only been arrested on the day
he was brought before the court (i.e. on 13 August 2016), does not alter this finding, as it is
clear from the unchallenged allegations by the source that Mr. Karim was in fact arrested
on 2 July 2016.
29.
The source alleges that Mr. Karim was detained incommunicado for the first few
weeks of his detention, and has since been denied regular visits with his family as well as
confidential consular assistance from the British High Commission that he is entitled to as a
national of the United Kingdom of Great Britain and Northern Ireland. The Working Group
has consistently argued that holding persons incommunicado is not permitted under
international human rights law, because it breaches the right to challenge the lawfulness of
detention before a judge (see, for example, opinions Nos. 53/2016 and 56/2016).
Furthermore, the Committee against Torture has made it clear that prolonged
incommunicado detention creates the conditions that may lead to violations of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (see, for example, A/54/44, para. 182 (a)), and the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment has argued that the
use of incommunicado detention is prohibited under international law (see, for example,
A/HRC/13/39/Add.5, para. 156).
30.
The Working Group considers that the incommunicado detention of Mr. Karim
violated articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and
3 See the Committee’s general comment No. 35 (2014) on liberty and security of person, para. 33.
4 Ibid., para. 38.
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14 of the Covenant. Further, the restrictions placed on Mr. Karim’s contact with his family
and on his consular access amount to a violation of the right to contact the outside world,
under applicable standards such as rules 43 (3) and 58 of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)5 and principles
15, 16 and 19 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment.
31.
The Working Group also finds that Mr. Karim has been denied access to legal
assistance since he was detained on 2 July 2016, in violation of his right to legal assistance
under article 14 (3) (b) of the Covenant. As the Working Group stated in principle 9 of the
United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right
of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court,6 all persons
deprived of their liberty shall have the right to legal assistance by counsel of their choice, at
any time during their detention, including immediately after the moment of apprehension
(para. 12).
32.
The Working Group is deeply concerned at the allegations that a local lawyer
attempted to provide legal assistance to Mr. Karim on 14 August 2016 but was pressured by
the authorities to stop representing him. The Working Group recalls that principle 9 of the
United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right
of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court provides that
“legal counsel shall be able to carry out their functions effectively and independently, free
from fear of reprisal, interference, intimidation, hindrance or harassment” (para. 15). The
Working Group will refer this situation to the Special Rapporteur on the independence of
judges and lawyers, for further consideration.
33.
The Working Group therefore concludes that these violations of the right to a fair
trial are of such gravity as to give the deprivation of liberty of Mr. Karim an arbitrary
character according to category III of the categories applied by the Working Group.
34.
The Working Group wishes to record its grave concern about Mr. Karim’s physical
and mental integrity since his detention on 2 July 2016, particularly given that Mr. Karim
was already a victim when he was taken hostage by armed gunmen. The source reports that
Mr. Karim, who suffers from a serious heart condition, is not receiving appropriate
medication while in detention and that he has not been assessed by a cardiologist. The risk
of irreparable harm to Mr. Karim’s health, including his death in prison, is heightened as a
result of his ongoing detention. This treatment violates Mr. Karim’s right under article 10
(1) of the Covenant to be treated with humanity and respect for his inherent dignity. The
Working Group has decided to refer this case to the relevant special procedures of the
Human Rights Council for further investigation, including to determine whether article 5 of
the Universal Declaration of Human Rights and article 7 of the Covenant have been
violated. The Working Group calls upon the Government to immediately and
unconditionally release Mr. Karim.
35.
The Working Group notes with concern the silence on the part of the Government in
not availing itself of the opportunity to respond to the serious allegations made in this case,
and in other opinions involving Bangladesh (see, for example, Working Group opinions
Nos. 51/2013, 37/2013, 66/2012, 63/2012 and 66/2011 and decision No. 5/1995).
36.
The Working Group would welcome an invitation from the Government to
undertake its first country visit to Bangladesh so that it can work constructively with the
Bangladeshi authorities in addressing serious concerns relating to the arbitrary deprivation
of liberty. The human rights record of Bangladesh will be subject to review during the third
cycle of the universal periodic review, in May 2018, and this is an opportunity for the
Government to demonstrate its cooperation with the special procedures of the Human
Rights Council and to bring its laws and practices into conformity with international human
rights law.
5 See A/RES/70/175.
6 See A/HRC/30/37.
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Disposition
37.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Hasnat Karim, being in contravention of articles 9 and
10 of the Universal Declaration of Human Rights and of articles 9, 10 and 14 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I and III.
38.
The Working Group requests the Government of Bangladesh to take the steps
necessary to remedy the situation of Mr. Karim 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.
39.
The Working Group considers that, taking into account all the circumstances of the
case, especially the risk of irreparable harm to Mr. Karim’s health and to his physical and
mental integrity, the appropriate remedy would be to release Mr. Karim immediately and
accord him an enforceable right to compensation and other reparations, in accordance with
international law.
40.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Karim, and to take appropriate measures against those responsible for the violation of his
rights.
41.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment and to the Special Rapporteur on the independence of
judges and lawyers, for appropriate action.
Follow-up procedure
42.
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. Karim has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Karim;
(c)
Whether an investigation has been conducted into the violation of Mr.
Karim’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 Bangladesh with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
43.
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.
44.
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.
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45.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.7
[Adopted on 22 August 2017]
7 See Human Rights Council resolution 33/30, paras. 3 and 7.