A/HRC/WGAD/2018/51

GE.19-00181(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-second session, 20–24 August 2018

Opinion No. 51/2018 concerning Sayed Nazar Naama Baqqer Ali Yusuf

Alwadaei, Mahmood Marzooq Mansoor and Hajar Mansoor Hassan

(Bahrain)

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 that mandate and most recently

extended it for a three-year period in its resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/36/38), on 4 May 2018 the Working

Group transmitted to the Government of Bahrain a communication concerning Sayed Nazar

Naama Baqqer Ali Yusuf Alwadaei, Mahmood Marzooq Mansoor and Hajar Mansoor

Hassan. The Government replied to the communication on 29 May 2018. 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/2018/51

General Assembly

Distr.: General

7 January 2019

Original: English

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Submissions

Communication from the source

4.

Sayed Nazar Naama Baqqer Ali Yusuf Alwadaei (Sayed Nazar Alwadaei) is a

Bahraini citizen born in 1998.

5.

Mahmood Marzooq Mansoor is a Bahraini citizen born in 1987.

6.

Hajar Mansoor Hassan is a Bahraini citizen born in 1968.

7.

According to the source, all three individuals are members of the family of Sayed

Ahmed Mustafa Mohamed Ali Alwadaei (Sayed Ahmed Alwadaei), a Bahraini human rights

activist: Sayed Nazar Alwadaei is his brother-in-law, Mr. Mansoor is his wife’s cousin, and

Ms. Hassan is his mother-in-law. The source alleges that the three victims have been

persecuted as a form of reprisal against Sayed Ahmed Alwadaei for his ongoing advocacy in

support of democracy and human rights, which has generally been critical of the Government

of Bahrain.

Context

8.

The source reports that widespread public protests occurred in Bahrain in 2011 and

protesters were subsequently arrested and detained, and allegedly coerced or tortured into

making or signing confessions.

9.

Sayed Ahmed Alwadaei reportedly participated in the 2011 protests, and he gave

several prominent media interviews, including to Al-Jazeera and BBC3. He was

consequently detained, tortured and later sentenced to six months’ imprisonment in absentia

by a military tribunal. He served this sentence, which was later overturned by the High

Criminal Court on 25 January 2012.

10.

According to the source, in 2012, fearing further persecution by the Government of

Bahrain, Sayed Ahmed Alwadaei travelled to the United Kingdom of Great Britain and

Northern Ireland, where he was granted refugee status on 2 August 2012. In the United

Kingdom, he co-founded the London-based Bahrain Institute for Rights and Democracy, a

non-profit human rights organization, and he continued to advocate for human rights and

democratic change in Bahrain. In 2015, the Government of Bahrain reportedly stripped him

of his citizenship, rendering him stateless.

11.

The source reports that, on 26 October 2016, Sayed Ahmed Alwadaei protested

peacefully in London against the visit of King Hamad of Bahrain to 10 Downing Street.

Hours later, his wife, Duaa Alwadaei, who was due to return to London from a visit to her

family in Bahrain, was detained together with their young son at Bahrain International

Airport by Bahraini security forces. She was interrogated for over seven hours, during which

government officers threatened her and her family, as well as the family of Sayed Ahmed

Alwadaei. She was reportedly released and permitted to leave Bahrain only after international

pressure and the intervention of the Embassy of the United States of America.

12.

On 4 December 2017, Ms. Alwadaei was summoned by the Fifth Criminal Court in

Bahrain in relation to her detention in October 2016 at Bahrain International Airport. On 21

March 2018, she was sentenced in absentia to two months in prison.

13.

According to the source, the threats against the families of both Sayed Ahmed

Alwadaei and his wife were reportedly followed through in March 2017 in relation to the

three subjects of the present communication.

Arrest, interrogation and detention

14.

The source reports that, on 2 March 2017, at 3.40 a.m., a group of masked security

officers detained Sayed Nazar Alwadaei and Mr. Mansoor at the residence of Mr. Mansoor,

in the village of Jid Ali, without an arrest warrant.

15.

According to the source, Sayed Nazar Alwadaei was interrogated without a lawyer

present and without being informed of the charges against him. He was held in detention at

the criminal investigation directorate for six days without charge. During his interrogation,

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officials from the criminal investigation directorate reportedly threatened that they would

take revenge on him for the activities of his sister’s husband, Sayed Ahmed Alwadaei. In its

submission, the source reports that officials suggested that he was from a “dirty family”, and

indicates that they said: “We will bring everyone in the family to this place, but for now we

wanted to start with your mother and cousin and we want you to sign what we tell you to

sign.” The source further indicates that officials stated: “We will come after your brother-in-

law very soon.” The source alleges that Sayed Nazar Alwadaei was subsequently tortured in

order to encourage him to implicate other members of his family in what his interrogators

called “wrongdoing”.

16.

The source reports that, in subsequent interrogations, Sayed Nazar Alwadaei was

pressed to give information about Sayed Ahmed Alwadaei, including where he lived and

worked, and what his working hours were. Sayed Nazar Alwadaei was allegedly beaten

depending upon his answers to these questions. He was blindfolded, required to remain in a

standing position and deprived of sleep.

17.

According to the source, Mr. Mansoor was also questioned about Sayed Ahmed

Alwadaei during his interrogation. Mr. Mansoor was also held without charge for six days,

allegedly threatened and ill-treated.

18.

On 5 March 2017, Ms. Hassan was reportedly summoned to the office of the criminal

investigation directorate for interrogation. At the office, while waiting to be interrogated, she

received a phone call from her son, Sayed Nazar Alwadaei. He explained that he had been

tortured by officials from the criminal investigation directorate and described his initial

interrogation. Ms. Hassan immediately called a family member to inform them that she had

received a call from her son. This was reportedly the last time Ms. Hassan spoke to her family

before she too was arrested.

19.

On the day of her arrest, Ms. Hassan was reportedly interrogated from 4.15 p.m. to

2.30 a.m. without a lawyer present and without being informed of the charges against her. As

in the case of Sayed Nazar Alwadaei and Mr. Mansoor, Ms. Hassan was questioned about

Sayed Ahmed Alwadaei. Throughout this period, she was required to remain standing. This

resulted in her collapsing and fainting, and sustaining an injury to her hand and shoulder. The

source reports that she was subsequently transferred by ambulance to a hospital where she

was given intravenous fluids.

20.

On 6 March 2017, Ms. Hassan was transferred to Isa Town women’s detention centre.

On the same day, her family attempted to visit her, but their request was denied. On 7 March

2017, she was transferred back to the office of the criminal investigation directorate. She was

reportedly held in detention for three days without charge.

Charges and evidence

21.

According to the source, on 8 March 2017, Sayed Nazar Alwadaei, Mr. Mansoor and

Ms. Hassan were taken to the Public Prosecution office. They were presented with terror-

related charges concerning two separate incidents that allegedly took place on 20 January

and 28 January 2017. Sayed Nazar Alwadaei was also presented with a further terrorism

charge concerning an alleged incident on 30 January 2017. During the interrogation at the

Public Prosecution office, only Ms. Hassan was accompanied by a lawyer. Both Sayed Nazar

Alwadaei and Mr. Mansoor were interrogated without a lawyer.

22.

In the first case, the Public Prosecution accused Sayed Nazar Alwadaei of planting a

fake explosive on 20 January 2017, at approximately 7.45 p.m., on Zayed Street in the village

of Jid Ali. According to the source, the evidence presented by the Public Prosecution was

limited to “confidential sources”, the coerced confessions of Sayed Nazar Alwadaei, and the

fake explosive, which authorities claimed to have found at the aforementioned location.

23.

In the second case, the Public Prosecution accused Sayed Nazar Alwadaei, Mr.

Mansoor and Ms. Hassan of planting fake explosives on 28 January 2017, at approximately

6.30 p.m., at the Mayouf roundabout in the village of Jid Ali. Ms. Hassan again denied that

accusation on record. The source alleges that the evidence presented by the Public

Prosecution on that charge was also limited to “confidential sources”, the coerced confessions

of Sayed Nazar Alwadaei, Mr. Mansoor and Ms. Hassan and the fake explosive, which

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authorities claimed to have found at the location. In addition, Mr. Mansoor was charged with

possession of a weapon (sword) without permission from the Minister of the Interior.

24.

The source reports that Ms. Hassan denied the accusation and was asked by the Public

Prosecutor why she confessed at the office of the criminal investigation directorate. The

Public Prosecutor wrote down Ms. Hassan’s response, notably that her confession had been

a response to the threats and coercion that officials from the criminal investigation directorate

had made against her, her son Sayed Nazar Alwadaei and her nephew Mr. Mansoor. The

source also reports that Ms. Hassan said to the Public Prosecutor: “If you are sending me

back to the [criminal investigation directorate], I will say whatever you want me to say and I

will sign it.”

25.

The source also reports that, when presented with the charges, Mr. Mansoor stated

that he had signed his confession at the office of the criminal investigation directorate without

being able to read it, and he denied the accusation on the record.

26.

The source notes that, according to forensic reports dated 9 March 2017, which have

reportedly been seen by Amnesty International, no fingerprints or DNA traces that could be

linked to Sayed Nazar Alwadaei, Mr. Mansoor and Ms. Hassan were found on the fake bombs.

27.

In the third case, Sayed Nazar Alwadaei was reportedly accused of deliberately setting

fire to a car owned by the Ministry of the Interior with Molotov cocktails on 30 January 2017.

However, he was not interviewed by the Public Prosecution or questioned in respect of the

charges.

Trial and conviction

28.

According to the source, on 7 May 2017, Sayed Nazar Alwadaei, Mr. Mansoor and

Ms. Hassan were tried on the above-mentioned charges. They were all refused bail.

29.

The source reports that, on 30 October 2017, the three individuals were each sentenced

to three years’ imprisonment. Mr. Mansoor was sentenced to an additional month in prison

and fined for possession of a weapon (sword) without permission from the Minister of the

Interior. On 29 November 2017, in separate proceedings concerning the same “fake bomb”

plot, Sayed Nazar Alwadaei was sentenced to a further three years in custody. All three

individuals remain in custody.

30.

On 20 December 2017, the sentences of all three individuals were reportedly upheld

by a Bahraini court of appeal. On 8 February 2018, a court of appeal further upheld Sayed

Nazar Alwadaei’s three-year prison sentence. On 26 March 2018, Sayed Nazar Alwadaei was

sentenced to an additional seven years’ imprisonment and a fine in respect of the allegation

pertaining to 30 January 2017.

Category II

31.

The source submits that the treatment of the above individuals, from their initial arrest

to their present custody, is based on a desire by the Government of Bahrain, or its employees

or agents, to retaliate against Sayed Ahmed Alwadaei on account of his human rights activism

and critical stance towards the Government. According to the source, the peaceful activities

of Sayed Ahmed Alwadaei are protected by articles 18, 19 and 20 of the Universal

Declaration of Human Rights and articles 18, 19 and 21 of the International Covenant on

Civil and Political Rights.

32.

In this respect, the source adds that it has been made evident to the three individuals

themselves that their arrest and detention had been calculated to retaliate against the activities

of Sayed Ahmed Alwadaei. As stated in paragraph 15 above, officials from the criminal

investigation directorate confirmed this to Sayed Nazar Alwadaei during his interrogation.

The source thus submits that the illegitimate purpose of the detention was to arrest the family

of Sayed Ahmed Alwadaei in order to take revenge on him.

33.

According to the source, the content of the interrogations further confirms that they

were neither legitimate nor genuine attempts to investigate any criminal activity. The three

individuals were interrogated about Sayed Ahmed Alwadaei’s working habits and daily

routine, rather than their own involvement in any alleged criminality. No credible evidence

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was otherwise disclosed to them to justify investigating them in connection with any

particular crimes. Instead, they and their family members were threatened, and the name of

Sayed Ahmed Alwadaei was repeatedly and inexplicably invoked.

34.

In relation to this, the source notes that a Member of Parliament in the United

Kingdom was told by a staff member of the Embassy of Bahrain in London that Sayed Ahmed

Alwadaei’s family members had been convicted by an independent Bahraini court a week

before their actual conviction on 30 October 2017.

35.

The source underlines the fact that this treatment fits into a wider pattern of

persecution of Sayed Ahmed Alwadaei and his family members, which includes his own

previous torture and conviction, as well as the detention of his wife and their young son, as

referred to above in paragraphs 9, 11 and 12.

36.

The source refers to paragraph 16 of Human Rights Committee general comment No.

35 (2014) on liberty and security of person, whereby “egregious examples of arbitrary

detention include detaining family members of an alleged criminal who are not themselves

accused of any wrongdoing”. In the same vein, the detention of family members of a human

rights activist comprises a similarly arbitrary, and illegitimate, use of powers of detention.

37.

The source also notes that the Human Rights Council has expressed its concern about

continued reports of intimidation of and reprisals against individuals and groups who seek to

cooperate or have cooperated with the United Nations, its representatives and mechanisms in

the field of human rights.1 It further notes that, in his 2016 report on cooperation with the

United Nations, its representatives and mechanisms in the field of human rights, the

Secretary-General also raised concerns about reprisals.2

38.

The source points out that, in the present case, the detention and interrogations of the

three members of Sayed Ahmed Alwadaei’s family coincided with his attendance at the

thirty-fourth session of the Human Rights Council, held in Geneva from 27 February to 24

March 2017.

Category III

39.

According to the source, all three individuals were arrested without a warrant. They

were not informed of the reason for their arrest when it occurred, nor was any, or at least any

credible, evidence implicating them in criminal activity subsequently disclosed to them. The

source submits that the arrests were thus conducted in breach of article 19 (b) of the

Constitution of Bahrain, article 61 of the Code of Criminal Procedure of Bahrain and article

14 of the Covenant.

40.

The source also submits that the three individuals were initially refused both

communication with their families and access to a lawyer who might be present during their

interrogations, in breach of article 61 of the Code of Criminal Procedure.

41.

The source further submits that the overall treatment of these individuals during their

interrogation amounted to the use of torture, and certainly comprised inhuman or degrading

treatment. Their interrogations thus breached article 19 (d) of the Constitution of Bahrain,

and articles 2 and 16 of the Convention against Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment. They further violated rule 1 of the United Nations

Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and

principle 6 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment.

42.

In addition, the source submits that their trials were conducted in breach of article 19

(d) of the Constitution of Bahrain, article 15 of the Convention against Torture and article 14

of the Covenant, as the evidence of the Public Prosecution relied heavily on “confessions”

obtained under torture. The source maintains that the Public Prosecution was barred under

domestic and international norms from admitting such evidence at trial. Its admission

rendered the trials both unconstitutional and unsafe under binding international law, and,

1 Human Rights Council resolution 12/2.

2 Human Rights Council resolution 33/19.

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according to the source, their subsequent custodial sentences therefore remain unlawful as

well.

Domestic remedies

43.

The source notes that, although a complaint was submitted on 9 March 2017 to the

Special Investigation Unit on behalf of Ms. Hassan, it has not been fully or properly

investigated: on 13 March 2017, she was transferred to the Special Investigation Unit

building for an interview, which her lawyer attended, but no further investigative steps or

results were announced after this meeting. In September 2017, Ms. Hassan’s lawyer was

informed by the Unit that her case was closed. To date, it has reportedly refused to disclose

any details related to its “investigation”.

44.

The source states that complaints on behalf of Sayed Nazar Alwadaei, Mr. Mansoor

and Ms. Hassan were also submitted to the Ombudsman of the Ministry of the Interior. On 9

or 10 August 2017, Ms. Hassan raised a complaint with the Ombudsman that she had been

denied visitation with her son for a period of two months. Immediately afterwards, she was

allegedly summoned by a lieutenant who threatened that she would be punished for

complaining to the Ombudsman. On 8 October 2017, Ms. Hassan submitted a complaint in

writing to the Ombudsman about the behaviour of the lieutenant. On 18 October 2017, the

Ombudsman reportedly responded by stating that no evidence of alleged misconduct had

been found, but failed to adequately investigate the complaint in respect of the treatment

suffered by Ms. Hassan.

45.

The source reports that, on 19 October 2017, the three individuals submitted a further

joint complaint to the Ombudsman. On 20 November 2017, the Ombudsman reportedly

refused to accept the complaint from Mr. Mansoor and Ms. Hassan, citing alleged errors in

procedure, even though the same procedure had been used to submit Ms. Hassan’s complaint,

which was accepted but not fully investigated. Further to that, an investigation into Sayed

Nazar Alwadaei’s case was initiated in March 2018.

46.

The source also reports that, on 28 November 2017, a fourth request to the

Ombudsman was raised by Sayed Ahmed Alwadaei. The Ombudsman has referred

complaints by all three of his family members to the Special Investigation Unit; complaints

are reportedly referred to the Unit when criminal acts may have been constituted or suspected

crimes may have been committed. However, these findings were at no time placed before the

court during the trials of Sayed Nazar Alwadaei, Mr. Mansoor or Ms. Hassan. On 17 January

2018, the Ombudsman reportedly stated that a “criminal act” had been committed against

Sayed Nazar Alwadaei, although on 14 March 2018 he stated that that was “not accurate”.

47.

According to the source, there has otherwise been no visible attempt by any organs of

the Government of Bahrain to credibly investigate the allegations of torture brought by those

three individuals against the criminal investigation directorate. The source submits that the

failure to properly and fully investigate the allegations of torture does not comply with the

Manual on the Effective Investigation and Documentation of Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), and thus breaches the

obligations of Bahrain under article 12 of the Convention against Torture.

Joint communication by special procedures

48.

Sayed Nazar Alwadaei, Ms. Hassan and Mr. Mansoor were the subjects of a joint

urgent appeal (see https://spcommreports.ohchr.org) sent on 27 March 2017 by the Working

Group on Arbitrary Detention, the Special Rapporteur on extrajudicial, summary or arbitrary

executions, the Special Rapporteur on the promotion and protection of the right to freedom

of opinion and expression, the Special Rapporteur on the rights to freedom of peaceful

assembly and of association, the Special Rapporteur on the situation of human rights

defenders, and the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment. The Working Group acknowledges the response from the

Government of Bahrain in relation to this joint communication.

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Response from the Government

49.

On 4 May 2018, the Working Group transmitted the allegations from the source to the

Government under its regular communications procedure. The Working Group requested the

Government to provide, before 4 July 2018, detailed information concerning the current

situation of Sayed Nazar Alwadaei, Mr. Mansoor and Ms. Hassan and to clarify the legal

provisions justifying their continued detention, as well as its compatibility with the

obligations of Bahrain under international human rights law, particularly with regard to the

treaties ratified by the State. Moreover, the Working Group called upon the Government to

ensure the physical and mental integrity of Sayed Nazar Alwadaei, Mr. Mansoor and Ms.

Hassan.

50.

In its response of 29 May 2018, the Government expresses its intent to clarify that the

allegations regarding the targeting of Sayed Ahmed Alwadaei’s relatives are baseless.

According to the Government, Sayed Nazar Alwadaei, Mr. Mansoor, and Ms. Hassan were

arrested for their involvement in the criminal cases described below.

51.

In the first case (against Sayed Nazar Alwadaei and others), a report was received on

30 January 2017 stating that 30 people were attacking a security patrol on Sheikh Zayed Road

in the village of Jid Ali with fire bombs (Molotov cocktails). The competent authorities

arrested two suspects who, during the interrogation, confessed to Sayed Nazar Alwadaei’s

participation in the incident. Following the required legal procedures, the Public Prosecutor

referred the case to court, which, on 26 March 2017, sentenced Sayed Nazar Alwadaei and

others to seven years’ imprisonment, ordering the confiscation of evidence and a collective

fine of 14,077 dinars. The convicted and sentenced defendants appealed and the case was

proceeding before the High Court of Appeal, with a hearing set for 15 June 2018, during

which a decision would be pronounced.

52.

In the second case (against Sayed Nazar Alwadaei, Mr. Mansoor, Ms. Hassan and

others), Sayed Nazar Alwadaei and Mr. Mansoor were arrested on 1 March 2017 and Ms.

Hassan on 5 March 2017 for their alleged role in placing, along with two others, a simulated

improvised explosive device on a public road with terrorist intent. In the police minutes, it is

noted that the three arrested stated that they were involved in the incident.

53.

On 8 March 2017, the Public Prosecution questioned the three arrested defendants

before charging them with carrying and placing a simulated improvised explosive device

with terrorist intent, which is proscribed by article 10 of Law No. 58 of 2006 with Respect to

Protection of the Community against Terrorist Acts. Mr. Mansoor was also charged with

possession of a melee weapon, which was seized from him.

54.

According to the Government, Sayed Nazar Alwadaei confessed during the

investigation that he was among those who participated in the incident and that his role was

to build the simulated improvised explosive device and to place it near a farm. He added that

the role of both Mr. Mansoor and Ms. Hassan was to facilitate transport to the location of the

incident in Mr. Mansoor’s car and to monitor police movements until the operation was

completed. Reportedly, one of the two fugitives had provided Sayed Nazar Alwadaei with

the components to build the simulated improvised explosive device and asked him to build

it, while the other fugitive had instructed him to place the simulated device near the farm and

to monitor police movements until the operation was completed. They would communicate

through his mobile phone via the Telegram application during the course of his surveillance.

55.

The Government submits that Mr. Mansoor also confessed to the charge of possessing

a melee weapon, which was confiscated from him, but denied the charge of carrying and

placing the simulated improvised explosive device. Ms. Hassan denied the charges against

her during the investigation carried out by the Public Prosecution, in the presence of her

lawyer.

56.

The Government adds that the Public Prosecution ordered the detention of the three

defendants and referred their cases, and those of the two fugitives, to the High Criminal Court,

where the case proceeded. At a hearing on 30 October 2017, the court sentenced Sayed Nazar

Alwadaei, Ms. Hassan, Mr. Mansoor and the fourth defendant to three years’ imprisonment.

Further, the court sentenced the fifth defendant to two years’ imprisonment for the charge of

placing a simulated improvised explosive device in a public area. In addition, Mr. Mansoor

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was sentenced to one month in prison and fined 100-dinar for the charge of possession of a

weapon. The court ordered the confiscation of the simulated explosive device and the weapon.

57.

According to the Government, those sentenced appealed the ruling, which was

accepted in form on 20 December 2017, but the court of appeal rejected the appeal in

substance and upheld the original judgment. The accused appealed the decision before the

Court of Cassation, where it remains under consideration by the judges.

58.

In the third case (against Sayed Nazar Alwadaei and a second defendant), Sayed Nazar

Alwadaei and the fugitive defendant were charged with carrying and placing a simulated

improvised explosive device on a public road for terrorist purposes. Sayed Nazar Alwadaei

was questioned by the Public Prosecution on 3 August 2017, when he confessed to

committing the act upon assignment by the fugitive. Ms. Hassan denied the charges against

her under investigation, and she was removed from the case. Subsequently, the Public

Prosecution referred Sayed Nazar Alwadaei to the High Criminal Court, which sentenced

him to three years’ imprisonment and ordered the confiscation of the seized items on 29

November 2017. Sayed Nazar Alwadaei subsequently appealed the decision, and the court

ruled in absentia to accept the appeal in form but not in substance, upholding the decision.

Sayed Nazar Alwadaei challenged the in absentia decision, and a hearing on the matter was

scheduled for 13 June 2018.

59.

Although no allegations of coercion were made before the Public Prosecution, the

Ombudsman initiated an investigation based on news reports that Sayed Nazar Alwadaei had

been subjected to torture. His statement was heard and the complaint was then referred to the

Special Investigation Unit, which in turn initiated an investigation of those allegations. No

injuries were proven to substantiate the allegations in the investigation. An investigation was

also initiated by the Special Investigation Unit in the light of the allegations put forward by

Amnesty International that Ms. Hassan and Mr. Mansoor had been subjected to torture. The

Special Investigation Unit closed the investigations, according to the file, due to a lack of

proof of the allegations and of direct evidence, and because there did not appear to be any

injuries to Ms. Hassan. With regard to the others, it was not proven in the course of the

investigation that there were any injuries that would verify the allegations.

60.

The Government also rejects the allegation that Ms. Alwadaei was arrested because

of her husband Sayed Ahmed Alwadaei’s activism or as a means to influence him, as she had

an actual case against her. In summary, when she was leaving the country via Bahrain

International Airport, she handed over her passport to a passport control officer without a

boarding pass. She was asked to present her ticket and reveal her destination, and it was

explained to her that this was the normal procedure. She responded to him impolitely, and he

asked her to speak to him with more respect. She subsequently threw the boarding pass

aggressively at him and spoke to him in a rude manner.

61.

According to the Government, she was therefore charged with insulting a public

official, and the Public Prosecution undertook the required legal procedures. The case was

transferred to a misdemeanour court, which, on 21 March 2018, sentenced her in absentia to

two months’ imprisonment; the sentence was suspended and she received bail in the amount

of 100 dinars.

62.

The Government also emphasizes the fact that all the procedures followed with respect

to the individuals were in accordance with the law. The Bahraini legal system enshrines

important safeguards and basic rights for suspects in the course of arrest in Law No. 46 of

2002 on the Issuance of the Code of Criminal Procedure.

63.

The Government states that a police officer must not arrest a person other than in the

instances provided by law and upon an order from the competent authorities without

prejudice to provisions regarding arrests of persons caught in flagrante delicto. Also, a police

officer must immediately record the statement of the arrested persons and refer them to the

Public Prosecution within a period not exceeding 48 hours. The Public Prosecutor must

question suspects within 24 hours and then order their detention or release only on the basis

of the conditions provided in law. The arrested persons must be provided with the reasons

for their arrest and be permitted to contact any of their relatives to inform them of their arrest

and to instruct a lawyer. The law also stipulates that those arrested be treated in a manner that

preserves their dignity and does not cause them physical or moral harm.

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64.

The Government further notes that all prisoners and detainees have the right to submit

a written or oral complaint at any time to the prison authorities, who may relay it to a head

judge, enforcement judge or the Public Prosecution. This is in addition to the numerous

safeguards under Bahraini law for prisoners and detainees in temporary detention and

correctional facilities. Furthermore, the Government has created a national mechanism for

instances in which prisoners or detainees believe or allege that they were subjected to any

violation of their rights and freedoms enshrined in law and in the International Covenant on

Civil and Political Rights, regardless of whether the violation originated from a person acting

in official capacity. In tandem with the judiciary, the Government has established agencies

that act impartially and independently (the Ombudsman of the Ministry of the Interior, the

Special Investigation Unit, the National Institute for Human Rights, the Prisoners and

Detainees Rights Commission, and the internal investigations administration of the Ministry

of the Interior). They are specifically tasked with safeguarding rights and monitoring

competent authorities in criminal proceedings in the course of arrest, trial, pretrial detention

or imprisonment. They have been granted a broad range of powers to conduct visits with or

without notice to prison and detention centres to ensure compliance with internationally

recognized standards and to interview inmates, and to make suggestions and

recommendations to the competent authorities.

65.

In addition, the Government states that members of the security forces, the judiciary

and law enforcement have regular access to various training and capacity-building

programmes aimed at enhancing their awareness and knowledge of the best legal practices

in performing their various duties. They are also subject to a sound legal system that is based

on the Constitution, laws and international instruments, especially those related to human

rights, including the code of conduct for the police, which was established in accordance with

the rules of conduct adopted by the General Assembly in its resolution 34/169.

66.

The Government affirms the fact that it is obligated to respect human rights under its

Constitution and laws, in line with international human rights standards. Legal proceedings

can be initiated against persons only if they have committed an illegal act, and the

proceedings must be based on the provisions of law that proscribe that act.

Further comments from the source

67.

The response from the Government was transmitted to the source on 4 June 2018 for

further comment. In its response of 18 June 2018, the source expresses its regrets that the

Government’s response failed to substantively respond to the allegations put forward in

relation to the arrest, detention, trial or torture and ill-treatment of Sayed Nazar Alwadaei,

Mr. Mansoor and Ms. Hassan.

68.

According to the source, other than by contending that the allegations are baseless

without providing evidence of steps taken by the authorities, the Government’s response

failed to address the nature of reprisals, namely, the source’s submissions that the motivation

behind the arrest, trial and conviction of Sayed Nazar Alwadaei, Mr. Mansoor and Ms.

Hassan was Sayed Ahmed Alwadaei’s human rights work in London. The source contends

that the Government merely provided a procedural history of the criminal proceedings against

the three individuals without addressing the content of their interrogations; this procedural

history further confirms that they were neither legitimate nor genuine attempts at

investigating any criminal activity. The source reiterates that a staff member of the Embassy

of Bahrain in London informed a Member of Parliament of the United Kingdom that they

had been convicted a week before the sentencing hearing was scheduled. For these reasons,

the source reiterates that the three individuals were detained arbitrarily, falling under category

II, for reasons related to Sayed Ahmed Alwadaei’s activities as a human rights defender.

69.

The source adds that the Government failed to address the catalogue of alleged due

process and fair trial violations that occurred in the course of the arrests, detentions and trials

of Sayed Nazar Alwadaei, Mr. Mansoor and Ms. Hassan, including:

(a)

Arrest without warrant;

(b)

Denial of access to legal counsel;

(c)

Failure to inform them of the charges against them;

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10

(d)

Failure to present them with the evidence against them;

(e)

Reliance on confessions that were obtained through unlawful means.

70.

In the source’s view, the Government’s response does not demonstrate that it has taken

the appropriate steps to investigate these violations or that it has considered the seriousness

of these allegations, resulting in unlawful convictions against them. Therefore, the source

invites the Working Group to issue an opinion finding that the trials of the three individuals

render their detention arbitrary under category III for failure to comply with international

minimum standards of fairness. Further, the Government’s failure to respond to these

allegations underscores the source’s submissions that their arrests, detentions and trials were

carried out as reprisals against Sayed Ahmed Alwadaei.

71.

The source disputes the Government’s claim that there was an ex officio investigation

of alleged torture and ill-treatment by the Ombudsman and the Special Investigation Unit.

Sayed Nazar Alwadaei, Mr. Mansoor and Ms. Hassan filed complaints of their own accord

to the Ombudsman, which were subsequently referred to the Special Investigation Unit, but

no viable steps have been taken by the relevant authorities to conduct an investigation,

including on the complaint in June 2018 regarding Ms. Hassan’s deteriorating health in

detention and the denial of adequate medical care, in line with international minimum

standards. Due to its failure to investigate the complaints adequately, promptly and

effectively, the Ombudsman is not a viable redress mechanism. As for the Government’s

contention that the investigations were initiated even without their filing of complaints, the

source reiterates that, under international law, the onus is on the State in question to promptly

and impartially investigate complaints whenever they are made by a victim of torture and ill-

treatment.

72.

In the source’s view, the Government’s further contention that the Special

Investigation Unit found no direct evidence to corroborate the allegations only serves to

reveal additional infringements of the victims’ rights under the Istanbul Protocol, the totality

of which renders the Unit’s investigation void for non-compliance therewith. The

infringements include:

(a)

Failure to keep victims informed and to provide opportunities to challenge

findings;

(b)

Reliance on medical evidence compiled by doctors who are not impartial or

independent;

(c)

Reliance on medical evidence to support a finding of “no torture” that did not

comply with minimum requirements.

73.

The source adds that the Government’s response provides the first occasion in which

the charges against Ms. Alwadaei have been communicated, despite her conviction in

absentia on 21 March 2018. In the source’s view, the response to her alleged offence, even

assuming arguendo that it is true, is wholly disproportionate, as the failure to respond in a

polite manner to a male official should not form the basis for criminal prosecution. Ms.

Alwadaei’s conviction in absentia underscores the connection with her husband’s work as a

human rights defender in the United Kingdom. The Government makes no argument against

this point.

Discussion

74.

The Working Group thanks the source and the Government for their extensive

engagement and for their submissions in relation to Sayed Nazar Alwadaei, Mr. Mansoor and

Ms. Hassan.

75.

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 (A/HRC/19/57,

para. 68). The Working Group recalls that, where it is alleged that a person has not been

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

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

A/HRC/WGAD/2018/51

11

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

guarantees required by law.3 A similar approach has been adopted by the Human Rights

Committee, according to which the burden of proof cannot rest on the author of the

communication alone, especially considering that the author and the State party do not always

have equal access to the evidence and frequently the State party alone has the relevant

information.4

76.

The Working Group wishes to reaffirm that the Government has the obligation to

respect, protect and fulfil the right to liberty of person and that any national law allowing

deprivation of liberty should be made and implemented in conformity with the relevant

international standards set forth in the Universal Declaration of Human Rights and other

applicable international or regional instruments.5 Consequently, even if the detention is in

conformity with national legislation, regulations and practices, the Working Group is entitled

and obliged to assess the judicial proceedings and the law itself to determine whether such

detention is also consistent with the relevant rules and standards of international human rights

law.6

77.

The Working Group also wishes to reiterate that it applies a heightened standard of

review in cases where the rights to freedom of movement and residence, freedom of asylum,

freedom of thought, conscience and religion, freedom of opinion and expression, freedom of

peaceful assembly and association, participation in political and public affairs, equality and

non-discrimination, and protection of persons belonging to ethnic, religious or linguistic

minorities, are restricted or where human rights defenders are involved. 7 The three

individuals’ close family ties to the State’s prominent human rights activist, Sayed Ahmed

Alwadaei, require the Working Group to undertake this kind of intense and strict scrutiny.8

Category I

78.

The Working Group will consider whether there have been violations under category

I, which concerns deprivation of liberty without invoking any legal basis.

79.

According to the information provided by the source, Sayed Nazar Alwadaei, Mr.

Mansoor and Ms. Hassan were arrested without a warrant and were not promptly informed

of either the reasons for their arrest or the charges against them. While the Government states

3 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment,

I.C.J. Reports 2010, p. 3, para. 55; and opinions No. 41/2013, para. 27, and No. 59/2016, para. 61.

4 See, for instance, Butovenko v. Ukraine (CCPR/C/102/D/1412/2005), para. 7.3; Medjnoune v. Algeria

(CCPR/C/87/D/1297/2004), para. 8.3; Conteris v. Uruguay, communication No. 139/1983, para. 7.2;

Bleier Lewenhoff and Valiño de Bleier v. Uruguay, communication No. 30/1978, para. 13.3. See also

opinions No. 41/2013, para. 28; No. 48/2013, para. 13; No. 51/2013, para. 16; No. 53/2013, para. 27;

No. 57/2013, para. 49; No. 5/2014, para. 15; No. 52/2014, para. 16, footnote 1; No. 2/2015, para. 16;

and No. 40/2015, para. 35.

5 General Assembly resolution 72/180, fifth preambular paragraph; Commission on Human Rights

resolutions 1991/42, para. 2, and 1997/50, para. 15; and Human Rights Council resolutions 6/4, para.

1 (a), and 10/9, para. 4 (b); opinions No. 38/2018, para. 60; No. 94/2017, para. 59; No. 88/2017, para.

32; No. 83/2017, paras. 51 and 70; No. 76/2017, para. 62; No. 28/2015, para. 41; and No. 41/2014,

para. 24.

6 Opinions No. 38/2018, para. 60; No. 94/2017, paras. 47 and 48; No. 33/2015, para. 80; No. 1/2003,

para. 17; No. 5/1999, para. 15; and No. 1/1998, para. 13.

7 Opinions No. 13/2018, para. 22; No. 3/2018, para. 40; No. 94/2017, para. 49; No. 57/2017, para. 46;

No. 41/2017, para. 95; No. 67/2012, paras. 56 and 57; No. 65/2012, paras. 39 and 40; No. 64/2011,

para. 20; No. 62/2012, para. 39; No. 54/2012, para. 29; and No. 21/2011, para. 29. Domestic

authorities and international supervisory bodies should apply the heightened standard of review of

government action, especially when there are claims of a pattern of harassment (opinion No. 39/2012,

para. 45). See Declaration on the Right and Responsibility of Individuals, Groups and Organs of

Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,

art. 9 (3).

8 Human rights defenders, in particular, have the right to study, discuss, form and hold opinions on the

observance, both in law and in practice, of all human rights and fundamental freedoms and, through

those and other appropriate means, to draw public attention to such matters (Declaration on Human

Rights Defenders, art. 6 (c)). See opinion No. 8/2009, para. 18.

A/HRC/WGAD/2018/51

12

that they were arrested in accordance with the law and due process, it failed to substantiate

such claims in order to refute the prima facie allegations put forward by the source. The

Government has offered no evidence, such as a copy of the arrest warrant or interrogation

minutes.

80.

The international norms on detention include the right to be presented with an arrest

warrant, except for arrests that are made in flagrante delicto, which is inherent in the right to

liberty and security of person and the prohibition of arbitrary deprivation of liberty under

articles 3 and 9 of the Universal Declaration of Human Rights and article 9 (1) of the

Covenant, as well as principles 2, 4 and 10 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment. 9 Any form of detention or

imprisonment should be ordered by, or be subject to the effective control of, a judicial or

other authority under the law whose status and tenure should afford the strongest possible

guarantees of competence, impartiality and independence, in accordance with principle 4 of

the Body of Principles.

81.

The failure at the time of their arrest to inform Sayed Nazar Alwadaei, Mr. Mansoor

and Ms. Hassan of the reasons for their arrest and of their rights and to inform them promptly

of any charges against them further violated articles 3 and 9 of the Universal Declaration of

Human Rights and articles 9 (2) and 14 (3) (a) of the Covenant, as well as principles 10 and

13 of the Body of Principles. In fact, Sayed Nazar Alwadaei and Mr. Mansoor were detained

without charge for six days while Ms. Hassan was detained without charge for three days.

82.

The Working Group notes that Sayed Nazar Alwadaei, Mr. Mansoor and Ms. Hassan

were not brought promptly before a judge or other officer authorized by law to exercise

judicial power, nor were they allowed to challenge the lawfulness of their detention before a

court in accordance with article 9 (3) and (4) of the Covenant.

83.

In this respect, the Working Group wishes to recall that, in order to establish that a

detention is indeed legal, anyone detained has the right to challenge the legality of his or her

detention before a court, as envisaged by article 9 (4) of the Covenant. According to 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, the right to challenge

the lawfulness of detention before a court is a self-standing human right, which is essential

to preserve legality in a democratic society.10 This right, which is in fact a peremptory norm

of international law, applies to:

All situations of deprivation of liberty, including not only to detention for purposes of

criminal proceedings but also to situations of detention under administrative and other

fields of law, including military detention, security detention, detention under counter-

terrorism measures, involuntary confinement in medical or psychiatric facilities,

migration detention, detention for extradition, arbitrary arrests, house arrest, solitary

confinement, detention for vagrancy or drug addiction, and detention of children for

educational purposes.11

Moreover, it also applies “irrespective of the place of detention or the legal terminology used

in the legislation. Any form of deprivation of liberty on any ground must be subject to

effective oversight and control by the judiciary”.12

84.

The Working Group notes that, in order to ensure an effective exercise of this right,

the detained persons should have access, from the moment of arrest, to legal assistance of

their own choosing, as stipulated in 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.13 In the present case, Sayed Nazar Alwadaei, Mr. Mansoor and

Ms. Hassan were not informed of their right to legal assistance, and they did not have access

to a lawyer when they were interrogated initially by the criminal investigation directorate and

later, except for Ms. Hassan, by the Public Prosecution. This seriously and adversely

9 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.

10 A/HRC/30/37, paras. 2 and 3.

11 Guideline 1, para. 47 (a).

12 Guideline 1, para 47 (b).

13 Principle 9, paras. 12–15.

A/HRC/WGAD/2018/51

13

impacted their ability to effectively exercise their right to challenge the legality of their

detention, denying them their rights under article 9 (4) of the Covenant.

85.

For the reasons given above, the Working Group considers that Sayed Nazar

Alwadaei’s arrest and six-day detention, Mr. Mansoor’s initial arrest and six-day detention,

and Ms. Hassan’s initial arrest and three-day detention lacked legal basis, which is in

violation of articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of

the Covenant.14 The Working Group therefore concludes that their detention is arbitrary

under category I.

Category II

86.

The source has also submitted that the deprivation of liberty of Sayed Nazar Alwadaei,

Mr. Mansoor and Ms. Hassan is arbitrary under category II, as it resulted from Sayed Ahmed

Alwadaei’s exercise, as a human rights defender, of the rights and freedoms guaranteed under

articles 18, 19 and 20 of the Universal Declaration of Human Rights and articles 18, 19 and

21 of the International Covenant on Civil and Political Rights.

87.

The source alleges, and the Government does not dispute, that Sayed Ahmed

Alwadaei was detained and tortured and served a six-month sentence, later overturned on

appeal, for his participation in the 2011 protest and prominent media interviews. According

to the source, he was granted asylum in the United Kingdom in 2012 for fear of further

persecution by the Government of Bahrain. He subsequently co-founded the Bahrain Institute

for Rights and Democracy and continued to advocate for human rights and democratic

change in Bahrain, which resulted in the Government of Bahrain depriving him of his

nationality in 2015.

88.

However, the Working Group has opted not to extend category II to the family

members of Sayed Ahmed Alwadaei in the present case, given that they were not the ones

who directly exercised the rights and freedoms protected by the Universal Declaration of

Human Rights and the Covenant.

Category III

89.

The Working Group will now consider whether the alleged violations of the right to

a fair trial and due process were of such gravity as to give the deprivation of liberty of Sayed

Nazar Alwadaei, Mr. Mansoor and Ms. Hassan an arbitrary character, falling within category

III.

90.

As noted above, all three individuals were arrested without a warrant and none of them

was promptly informed of either the reasons for their arrest or of any charges against them,

which is in violation of articles 9 (2) and 14 (3) (a) of the Covenant.15 They were also denied

the right to notify and communicate with their families, and they did not have access to a

lawyer when they were interrogated initially by the criminal investigation directorate and

later, except for Ms. Hassan, by the Public Prosecution.16

91.

The Working Group considers that the lack of judicial oversight and access to a lawyer

in the early stages of detention lends weight to the source’s allegation of the resort by the

criminal investigation directorate to torture, ill-treatment and threats against family members

in order to extract confessions. No fair trial is possible under such an atmosphere of fear. The

Working Group notes that the reliance in trial on confessions that were obtained through

unlawful means violates not only article 14 (3) (g) of the Covenant 17 but also the

Government’s international obligations under the Convention against Torture, in particular

article 15. The Working Group regrets that the Government has yet to conduct a serious

14 See also Arab Charter on Human Rights, art. 14.

15 See also articles 14 (1) and (3) and 16 (1) of the Arab Charter on Human Rights.

16 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, principle 9; Body of Principles for

the Protection of All Persons under Any Form of Detention or Imprisonment, principles 10, 11 (1), 15

and 17–19; and Arab Charter on Human Rights, art. 16 (2), (3) and (4).

17 See also Arab Charter on Human Rights, art. 16 (6).

A/HRC/WGAD/2018/51

14

investigation into the credible allegations of torture and ill-treatment raised by the three

detainees.

92.

The Working Group takes note of the opinion of the International Court of Justice

stating that “the prohibition of torture is part of customary international law and it has become

a peremptory norm (jus cogens)” as “that prohibition is grounded in a widespread

international practice and on the opinio juris of States”, along with the bold pronouncement

appended by Judge Cançado Trindade that “human conscience has awoken to the pressing

need for decisively putting an end to the scourges of arbitrary detention and torture. The

general principles of the law, and the fundamental human values underlying them, play a

quite significant and crucial role here. Such fundamental values have counted on judicial

recognition in our times”. 18 The Working Group refers the present case to the Special

Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment for

appropriate action.

93.

In the light of the above, the Working Group concludes that the violations of the right

to a fair trial and due process are of such gravity as to give the deprivation of liberty of Sayed

Nazar Alwadaei, Mr. Mansoor and Ms. Hassan an arbitrary character, falling within category

III.

Category V

94.

The Working Group will now examine whether the deprivation of liberty of Sayed

Nazar Alwadaei, Mr. Mansoor and Ms. Hassan constitutes illegal discrimination under

international law, falling under category V.

95.

Although the Government claims that the three individuals were arrested and tried for

individual criminal acts, it is difficult to believe that their arrest, detention and trial have no

connection with Sayed Ahmed Alwadaei. The Working Group notes that Sayed Ahmed

Alwadaei himself had been deprived of his liberty and nationality by the Government for his

activities, and that his wife, Ms. Alwadaei, had also been detained, tried and convicted for

her alleged failure to respond to an airport official in a polite manner.

96.

The Working Group is persuaded that Sayed Nazar Alwadaei, Mr. Mansoor and Ms.

Hassan were deprived of their liberty, interrogated and prosecuted for their family ties with

Sayed Ahmed Alwadaei and that these were acts of reprisals. This is the only plausible

explanation for the subversion of the equal protection of the law they have experienced, as

observed above. The Working Group recalls that no one should be deprived of liberty for the

crimes, real or not, committed by their family member by birth or marriage in a free,

democratic society.19

97.

For these reasons, the Working Group considers that the deprivation of liberty of

Sayed Nazar Alwadaei, Mr. Mansoor and Ms. Hassan constitutes a violation of article 2 of

the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant20 on the

grounds of discrimination based on birth or other status aimed at and resulting in ignoring

the equality of human beings and that it therefore falls under category V.

98.

The Working Group reiterates the dictum of 1980 of the International Court of Justice

that states: “Wrongfully to deprive human beings of their freedom and to subject them to

physical constraint in conditions of hardship is in itself manifestly incompatible with the

principles of the Charter of the United Nations, as well as with the fundamental principles

enunciated in the Universal Declaration of Human Rights.” 21 The conventional and

18 See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,

I.C.J. Reports 2012, p. 3, para. 99, and the separate opinion thereto of Judge Cançado Trindade, p. 69,

para. 95.

19 Opinion No. 26/2018, para. 79.

20 See also Arab Charter on Human Rights, art. 3 (1).

21 See United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, para.

91, cited in opinions No. 30/2018, para. 40, footnote 9; No. 94/2017, para. 52, footnote 9; No.

76/2017, para. 56, footnote 19; No. 63/2017, para. 51, footnote 14; No. 37/2014, para. 32; No.

22/2014, para. 18, footnote 1; and No. 10/2013, para. 23, footnote 1. See also Ahmadou Sadio Diallo

A/HRC/WGAD/2018/51

15

customary prohibition of arbitrary detention has been authoritatively recognized as a

peremptory norm (jus cogens) of international law by the Human Rights Committee in

paragraph 11 of its general comment No. 29 (2001) on derogations from provisions of the

Covenant during a state of emergency, and in paragraphs 51 and 75 of the Working Group’s

Deliberation No. 9 (2012) concerning the definition and scope of arbitrary deprivation of

liberty under customary international law (A/HRC/22/44, paras. 37–75).22

99.

The present case is one of several cases brought before the Working Group in the past

five years concerning the arbitrary deprivation of liberty of persons in Bahrain, in which the

Working Group has found the Government to be in violation of its human rights obligations.23

The Working Group recalls that, under certain circumstances, widespread or systematic

imprisonment or other severe deprivation of liberty in violation of the rules of international

law may constitute crimes against humanity.24

Country visit to Bahrain

100.

The Working Group reiterates that it would welcome the opportunity to conduct a

country visit to Bahrain, in accordance with the request it made on 17 January 2017, so that

it can engage with the Government constructively and offer assistance in addressing its

serious concerns relating to the arbitrary deprivation of liberty.25

Disposition

101.

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

The deprivation of liberty of Sayed Nazar Naama Baqqer Ali Yusuf Alwadaei,

Mahmood Marzooq Mansoor and Hajar Mansoor Hassan, being in contravention of

articles 2, 3, 5, 9, 10 and 25 of the Universal Declaration of Human Rights and of

articles 2, 7, 9, 10, 14 and 26 of the International Covenant on Civil and Political

Rights, is arbitrary and falls within categories I, III and V.

102.

The Working Group requests the Government of Bahrain to take the steps necessary

to remedy the situation of Sayed Nazar Alwadaei, Mr. Mansoor and Ms. Hassan 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.

103.

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

case, the appropriate remedy would be to release Sayed Nazar Alwadaei, Mr. Mansoor and

Ms. Hassan immediately and accord them an enforceable right to compensation and other

reparations, in accordance with international law.

104.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Sayed

Nazar Alwadaei, Mr. Mansoor and Ms. Hassan and to take appropriate measures against

those responsible for the violation of their rights.

(Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, p.

639, paras. 75–85, and the separate opinion thereto of Judge Cançado Trindade, pp. 763–777, paras.

107–142.

22 Opinions No. 63/2017, para. 51; No. 10/2013, para. 32; No. 16/2011, para. 12; No. 15/2011, para. 20;

and No. 24/2010, para. 28; and Restatement (Third) of the Foreign Relations Law of the United

States, sect. 702, comment (n), sect. 102 comment (k) (1987), listing (a) genocide, (b) slavery or slave

trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman,

or degrading treatment or punishment, (e) prolonged arbitrary detention, and (f) systematic racial

discrimination as definitive peremptory norms.

23 See opinions No. 13/2018, No. 55/2016, No. 35/2016, No. 41/2015, No. 23/2015, No. 37/2014, No.

34/2014, No. 27/2014, No. 25/2014, No. 22/2014, No. 1/2014 and No. 12/2013.

24 Opinions No. 13/2018, para. 38; No. 27/2014, para. 32; and No. 22/2014, para. 25.

25 Opinion No. 13/2018, para. 39.

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16

105.

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

the case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment

or punishment for appropriate action.

106.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

107.

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 Sayed Nazar Alwadaei, Mr. Mansoor and Ms. Hassan have been

released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Sayed Nazar

Alwadaei, Mr. Mansoor and Ms. Hassan;

(c)

Whether an investigation has been conducted into the violation of Sayed Nazar

Alwadaei, Mr. Mansoor and Ms. Hassan’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 Bahrain with its international obligations in line with the

present opinion;

(e)

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

108.

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.

109.

The Working Group requests the source and the Government to provide the above-

mentioned 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.

110.

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.26

[Adopted on 22 August 2018]

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