Opinion; Subjects: KUWAIT, 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.20-02243(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-sixth session, 18–22 November 2019
Opinion No. 82/2019 concerning Waleed Antoine Moubarak (Kuwait)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution
60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work (A/HRC/36/38), on 22 February 2019 the
Working Group transmitted to the Government of Kuwait a communication concerning
Waleed Antoine Moubarak. The Government replied to the communication on 21 May
2019. 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/2019/82
General Assembly
Distr.: General
14 February 2020
Original: English
A/HRC/WGAD/2019/82
2
Submissions
Communication from the source
(a)
Context
4.
Waleed Antoine Moubarak is a dual national of Canada and Lebanon who was born
on 26 April 1970. Mr. Moubarak usually resides in Salmiya, Kuwait. He has passports
issued by Canada and Lebanon.
5.
From April 2006, Mr. Moubarak served as Chief Legal Officer of a large private
conglomerate (the “company”). A disagreement with the owner’s son reportedly led to Mr.
Moubarak’s dismissal in December 2017 and he left Kuwait, returning on 3 April 2018 at
approximately 1 p.m. He entered Kuwait without any problems and was collected by a
company driver, who took him to his apartment, itself provided by the company, and was
asked to turn in his Canadian passport so the company could, as a courtesy, renew his
residency. He handed his Canadian passport to the company representative, and it was
reportedly never returned.
(b)
Arrest
6.
According to the source, on 3 April 2018, Mr. Moubarak entered his apartment and
subsequently went outside at approximately 3.30 p.m., at which point he was arrested in the
street, directly in front of his residence, by a number of officers from the Criminal
Investigation Department. They forcibly placed him in handcuffs and took him to Shuwaikh
police station, without informing him at any stage as to why he was being arrested. They
confiscated his three mobile telephones and his wallet, credit cards and identity documents.
At the time of the submission by the source, none of these items had been returned, nor,
contrary to article 91 of the Code of Criminal Procedure (Act No. 17 of 1960), had any
record been made of the items seized.
7.
The source reports that a few hours later, Mr. Moubarak was taken back, in
handcuffs, to his apartment by approximately 10 officers from the Criminal Investigation
Department. They had no warrant, as far as he was aware, and rather than requesting his
permission to enter, they did so by force. They seized personal electronic items, such as
laptops (for which they forced him to provide passwords) and folders of personal papers.
They made no list of the items that they were seizing, and provided no receipt for the items
that they were removing. No search warrant was ever shown to Mr. Moubarak.
8.
According to the source, Mr. Moubarak was then taken back to Shuwaikh police
station, where he was shown two cigarettes containing cannabis that the police claimed to
have found in his apartment. He was also shown alcohol that they claimed to have found in
a storage room in his apartment. They allegedly threatened him with personal violence,
denied him his right to a lawyer and demanded that he admit possession of the alcohol and
cannabis.
9.
The source reports that these are misdemeanour charges. However, the police later
asked questions about allegations of embezzlement, apparently made against him by the
company. Mr. Moubarak explained that his employment with the company had always been
honest and faithful and he refused to confess to what the police were calling “a breach of
trust”.
10.
Mr. Moubarak was reportedly refused food and water for 48 hours and was
repeatedly interrogated over three days and two nights in the custody of the Criminal
Investigation Department at Shuwaikh police station. He was not at any time allowed a
phone call, despite his request, and was denied private interviews with his lawyer. He was
only allowed telephone calls and visitors as from 9 April 2018, after having spent six days
in solitary confinement and incommunicado detention. The source submits that this is
contrary to article 60 bis of the Code of Criminal Procedure, which provides that during
police detention the accused must be permitted to contact their lawyer and to inform
another person of their whereabouts.
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(c)
Detention
11.
The source indicates that on 5 April 2018, Mr. Moubarak was transferred to prison,
where he was properly and humanely treated except on the days when he was taken to
court.
12.
The source reports that Mr. Moubarak had his head forcibly shaved so that he would
look like a common criminal. Whenever he was transported out of the prison and
transferred to court hearings, he was shackled by his wrists and ankles to other prisoners,
transported to the court in an overcrowded bus and denied sustenance throughout the day.
13.
The source describes how Mr. Moubarak’s lawyer was not notified of his court
appearances, except for a hearing held on 9 May 2018. On that occasion, his lawyer was not
allowed to speak to the judge to apply for bail. However, the arguments of the prosecution
and the company’s lawyer against bail were heard. Mr. Moubarak was not allowed to
communicate with his lawyer at the court, and consular visits from Canadian and Lebanese
diplomats were reportedly not permitted because this was part of the “investigative stage”.
14.
According to the source, one of the two cases against Mr. Moubarak is related to the
allegations made against him by the company. The source contends that the company was
influencing, if not directing, the behaviour of the police and the courts. The source adds that
the company informed the police of Mr. Moubarak’s whereabouts, so he could be arrested.
On the second day of Mr. Moubarak’s police custody, on 4 April 2018, a lawyer hired by
the company attended the police station to give instructions to the arresting officers from
the Criminal Investigation Department.
15.
The source reports that a second lawyer representing the company gained entrance
to the prison and asked to speak to Mr. Moubarak without his lawyer being present, which
Mr. Moubarak refused. The second lawyer representing the company also appeared and
was permitted to make pleadings against bail, which were successful. He was reportedly
seen by Mr. Moubarak to be meeting with police officers and sharing documents about the
case. The second lawyer also successfully objected to Mr. Moubarak and his lawyer
speaking privately.
16.
According to the source, it is apparent that the company, having an employment
dispute pending with Mr. Moubarak, had a conflict of interest in the case and was
nevertheless allowed by the authorities to play a privileged role in his prosecution,
including standing in court during the bail hearing. The source submits that the company is
entitled to bring a breach of trust claim in a civil action under Kuwaiti law, but it is not
entitled to have its disagreements with Mr. Moubarak transformed into a criminal action
brought by the State. The source notes that the allegation of “breach of trust” was
apparently made by the company orally to the police on 3 April 2018, and that at the same
time a civil claim was filed by the company alleging that in 2012, Mr. Moubarak, as its
Chief Legal Officer, had signed a contract to the benefit of a foreign company in which he
had an interest. This is an allegation that Mr. Moubarak denies.
17.
The second of the two cases against Mr. Moubarak is related to the possession of
alcohol and cannabis, found in his house by the Criminal Investigation Department on 3
April 2018. Under Kuwaiti law, this amounts to a junha crime, a misdemeanour, and could
not justify the refusal of bail and months of pretrial detention for a person with no previous
convictions.
(d)
Court hearings
18.
According to the source, the two charges against Mr. Moubarak were dealt with
separately. The breach of trust case was brought before a judge on 24 June 2018, and he
was granted bail in the sum of 5,000 Kuwaiti dinars despite the objections of the company’s
counsel. This did not secure his release from prison, however, as he continued to be held on
the cannabis charge. He was not granted bail on this charge until 5 July 2018. The source
adds that by the time of his release from prison, he had been arbitrarily detained for 93
days.
19.
The source reports that the next hearing on the breach of trust case was scheduled
for 22 July 2018. It was a procedural formal pretrial hearing that Mr. Moubarak was not
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4
required to attend. Lawyers for both parties – Mr. Moubarak and the company – presented
documents and made requests for disclosure. In order to prepare his defence, including
against a complicated allegation that he had funnelled money through a foreign company,
his lawyers sought access to his laptop and the personal papers seized by the police and to
the documents in the prosecution file, which had not been released to the defence. They
also asked that the prosecution make available for cross-examination at trial a police officer
who had claimed that Mr. Moubarak had immediately admitted the offence. They further
asked for leave for a forensic expert to examine the defendant’s laptops and cell phones.
20.
The source reports that the hearing began at 10.30 a.m. on 22 July 2018 and lasted
only 45 minutes, as the defence made their applications and the prosecution made several of
their own, producing some new evidence. Neither side had thought that the hearing would
be on the substance of the case. Mr. Moubarak’s lawyers were not called upon to mount a
defence, and did not do so. The judge retired for a short time, giving the impression that he
was going to rule on the interim applications. He returned with a guilty verdict and
sentenced Mr. Moubarak to the maximum prison sentence of two years, with hard labour,
for breach of trust. The judge said that the sentence was to be executed immediately,
without bail pending appeal. In this respect, the judge reportedly referred to a decision by
the Court of Cassation which, according to him, had set a precedent for a trial court to
proceed to a conviction without any obligation to examine the defence arguments if the
judge was satisfied by the prosecution case.
21.
According to the source, the hearing did not meet the standard for a fair trial as
provided for in articles 9 and 14 of the Covenant. The source asserts that the fact that Mr.
Moubarak was convicted of a jail sentence for a serious offence in his absence, and without
his lawyers being given any opportunity to present a defence or to prepare a defence with
Mr. Moubarak, means that the subsequent detention was automatically arbitrary.
22.
In this respect, the source highlights that Kuwaiti law is silent on how the judge
should proceed once in charge of the investigation. There are, as far as the source
understands, no procedural rules actually requiring the judge to hear the defence before
convicting; this is simply always done, as an obvious matter of fairness. Whether or not he
acted contrary to Kuwaiti procedural rules, he certainly breached the provisions of the
Covenant in relation to a fair trial.
23.
The source reports that Mr. Moubarak’s appeal was heard in the Court of Appeal on
13 August 2018. His counsel reportedly sought to cross-examine prosecution witnesses,
including its expert witness and its investigating officer, and sought disclosure of the
relevant documents necessary to establish Mr. Moubarak’s innocence. The Court postponed
its judgment until 27 August 2018, on which date it confirmed the decision of the lower
court.
24.
The source adds that, on 11 December 2018, the Court of Cassation dismissed Mr.
Moubarak’s appeal and confirmed the verdict and the sentence of two years’ imprisonment
with hard labour. According to the source, the Court of Cassation refused to engage with
any of the arguments made by Mr. Moubarak’s lawyers, in particular about the fair trial
issues during the hearing at the lower court. There was no examination of the arguments
that he had not been allowed to access documents, to cross-examine the police witness, to
testify on his own behalf or to call witnesses and produce documents to establish his
innocence. The Court merely applied a rule that because Mr. Moubarak did not appear on
the day of the hearing, his challenges to the verdict could not be heard.
25.
In relation to the second case, regarding the two cigarettes containing cannabis that
had been found in Mr. Moubarak’s apartment, the verdict was issued on 6 December 2018
and he was sentenced to four years’ imprisonment. The source adds that the two cigarettes
were found in the premises that Mr. Moubarak had not occupied for four months, and a
blood test at the time of his arrest proved negative for narcotics and alcohol. Although the
alcohol allegedly found in the flat was not entered into evidence, the small amount of
cannabis (4.6 grams) was.
26.
The source adds that the usual sentence for this class of offence, when there is no
suggestion of trafficking and the defendant is of good character, is a community order or a
fine. The source submits that a sentence of four years’ imprisonment is disproportionate to
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the actual offence, meaning that the subsequent deprivation of liberty was arbitrary. There
was no proof that the cannabis was his, and there was evidence that he was not a recent
consumer of narcotics. The source concludes that the decision was not substantiated and
was disproportionate considering the small amount involved and the usual sentence
imposed in similar cases.
27.
According to the source, in September 2019, Mr. Moubarak managed to extricate
himself from Kuwait and was permitted to enter another country, although he is still subject
to the prison sentences in Kuwait and an extradition request may be made by Kuwait. The
source states that Kuwait has already sought his arrest through the International Criminal
Police Organization and has pursued new criminal cases against him.
(e)
Legal analysis
(i)
General considerations
28.
The source submits that the facts of the present case amount to breaches of various
provisions of the Universal Declaration of Human Rights, notably articles 7, 9, 10 and 11,
and breaches of articles 9 and 14 of the Covenant. These breaches are of sufficient gravity
to give the deprivation of liberty of Mr. Moubarak an arbitrary character. In addition, there
were serious breaches of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment, notably principles 1, 2, 4, 6, 8, 9, 10, 11, 12, 13, 16
(2), 17, 18 and 21.
29.
The source submits that the equality of arms principle is undermined by article 111
of Code of the Criminal Procedure, which allows third-party civil plaintiffs, also called
victims, to become “joint plaintiffs”: in effect, the civil plaintiff becomes a party to the
investigation in support of the prosecutor. The source adds that this results in unfairness,
since the company, who has an interest in the case, is permitted to start and then join in on
the police investigation, to share information to which Mr. Moubarak was not permitted
access and to speak to the court to discuss his bail application, thus manipulating the
criminal proceedings.
30.
The source adds that articles 111 and 112 of the Code of Criminal Procedure, in
allowing those making allegations to become part of the prosecution, are gravely unjust.
The source also adds that the State has in effect allowed its criminal process to be taken
over for the purposes of advancing a civil claim, or at least resolving a case of unfair
dismissal in favour of the employer. The source notes that Mr. Moubarak’s relationship
with his employer, including a provision that all disputes should be decided by English law,
is set out in detail in his employment contract.
31.
The source submits that Mr. Moubarak’s conviction and appeal amounted to an
obvious and flagrant denial of his right to a fair trial. He was unequivocally denied the
opportunity to challenge the prosecution’s evidence and to put forward his defence. The
source adds that there was also a clear issue with the equality of arms between Mr.
Moubarak and the civil complainant, who was effectively prosecuting the case.
32.
The source notes that the right to a fair trial and its essential components can be
found in the Constitution of Kuwait, which guarantees equal treatment before the law, the
presumption of innocence and the protection of the necessary guarantees to exercise the
right of defence (arts. 29 and 34). In addition, the Code of Criminal Procedure reinforces
those provisions by affording specific rights to the defence to cross-examine prosecution
witnesses, call witnesses of their own and make closing submissions and submissions on
sentencing. However, according to the source, all these procedural protections were flouted
in the present case.
33.
The source also notes that the core protections of the right to a fair trial in
international law are enshrined in article 14 (1), (2) and (3) of the Covenant, to which
Kuwait acceded in 1996. In this respect, the source submits that if the core elements of the
right to a fair trial are denied – such as the right to challenge the prosecution case and put
forward a defence, or the right to call and examine witnesses – the fact that other elements
of the right were respected is not relevant. Hence, the fact that Mr. Moubarak had counsel
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appearing on his behalf provided no remedy for the serious fair trial violations established
in this case.
(ii)
In relation to the charges of breach of trust
34.
The source recalls that there were two hearings in the first-instance court. At the
first, very short, hearing on 24 June 2018, the breach of trust allegation was put forward,
Mr. Moubarak denied it, and the court dealt with bail. Apart from bail, no other issues were
dealt with at the first hearing, and the case was adjourned. The hearing lasted no more than
three to four minutes.
35.
The source also notes that criminal procedure law in Kuwait mandates an
“investigatory stage” of no fixed time period, during which the prosecution is not required
to show the evidence in its file to the defence and there is no presumption of any
entitlement to bail. Moreover, under Kuwaiti law, there is no provision for sureties: Mr.
Moubarak cannot propose friends or pledge sums of money to serve as evidence that he will
present himself at trial. This is a serious defect, which results in most suspects being denied
bail during the investigatory stage.
36.
The source adds that the only hearing that could amount to a trial in the case of Mr.
Moubarak was the second and final hearing in the first-instance court, on 22 July 2018.
According to the source, it was obvious by this point that the breach of trust allegation was
serious and complex. As the prosecution had not served the evidence on which it sought to
rely to convict Mr. Moubarak, it was anticipated that this would be in effect a preliminary
hearing for procedural instructions. Mr. Moubarak was not required to attend, so he did not
do so.
37.
The source reports that at this hearing, two lawyers appeared for the company and
effectively took over the prosecution. It was they, not the prosecutor, who spoke against
Mr. Moubarak, calling on the court to convict him with “the strictest verdict”. Each lawyer
presented a portfolio of evidence against Mr. Moubarak. It was reportedly this evidence,
comprising hundreds of pages of documents that the defence had not seen, that the court
would use to convict Mr. Moubarak.
38.
According to the source, Mr. Moubarak’s lawyers then made submissions, merely
procedural applications, which would allow the lawyers to challenge the prosecution case
and put forward Mr. Moubarak’s defence. They applied to call key prosecution witnesses
for cross-examination, they sought disclosure of the evidence on which the prosecution
were relying to prove Mr. Moubarak’s guilt, and they sought disclosure of exculpatory
evidence held by the complainant. They also needed an opportunity to consider the
evidence that had only just been served on them.
39.
The source adds that with that, the hearing ended. No witnesses had been called, no
rulings had been made on the defence applications, and there had been no opportunity to
challenge the prosecution testimony nor to challenge the documents on which it was based.
The judge continued to hear the other cases in his list and he then left the court. Shortly
thereafter, the judge sent back an annotated list of all the cases with which he had dealt that
day, marking against each case the outcome of that day’s proceedings. In the case of Mr.
Moubarak, the outcome was that he had been sentenced to two years’ imprisonment with
hard labour, with immediate effect.
40.
According to the source, the judge later issued a written judgment. It contained
nothing related to the fact that Mr. Moubarak had been denied his right to challenge the
prosecution case and establish his defence. As for the defence applications made during the
hearing, the judge merely said that “the defendant’s attorney [had] submitted several
requests that were perused and taken into consideration by the court”. However, the judge
made no attempt to explain why he had decided to convict and sentence Mr. Moubarak
without proceeding to a trial on the substance of the case.
41.
The source notes that the judge wrote at the end of the written judgment that his
ruling had been given in the presence of “both litigants”. However, as noted above, Mr.
Moubarak was not required to attend court on 22 July 2018 and he did not do so, although
he was represented by counsel.
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42.
The source reports that before the Court of Appeal, Mr. Moubarak’s lawyers
challenged the conviction on the grounds of denial of his right to a fair trial and other
grounds, all of which were rejected. The Court of Appeal referred to the principle that “the
trial court must hear the testimonies of witnesses and consider all elements presented”.
However, the Court of Appeal concluded that the first-instance court had deliberated over
the case “with due insight and contemplation”. The Court of Appeal argued that the
conviction was justified since Mr. Moubarak had admitted the crime. However, the trial
court itself had previously acknowledged that Mr. Moubarak had denied that allegation.
43.
According to the source, on 11 December 2018, the Court of Cassation dismissed
Mr. Moubarak’s application without considering its merits, on the grounds that he was not
present for the hearing.
44.
The source submits that the court documents in this case reveal a flagrant denial of
Mr. Moubarak’s right to a fair trial in domestic and international law. The source adds that
the arbitrary rejection of the defence applications and the decision to proceed to conviction
and sentencing deprived Mr. Moubarak of the presumption of innocence and prevented him
from examining and challenging the case against him.
45.
The source further submits that, in addition to the breach of Mr. Moubarak’s right to
a fair trial, his right not to be unlawfully deprived of his liberty was consistently ignored.
Indeed, clear violations of provisions of the Code of Criminal Procedure may be
demonstrated as follows: the investigator’s order for Mr. Moubarak’s arrest without solid
evidence (art. 62); failure to provide written reasons for his arrest (art. 74 bis); failure by
the police to record items seized in their search of his apartment (art. 91); failure to provide
him with a copy of the search record (art. 91); denial of his right of access to a lawyer in
private at the police station (art. 74 bis); failure of the investigator to provide reasons for
holding him in preventive custody (art. 74 bis); breach of the 10-day limit on detention in
misdemeanour cases (art. 69); denial of the opportunity for him to speak to his lawyers in
private at hearings before the renewal judge (art. 74 bis); failure to release him before the
10-day extension of his custody expired (art. 69); failure to release him before the 30-day
extension of his custody expired (art. 70); failure to limit the preventive custody to such
period as was necessary for the purposes of the investigation (arts. 69 and 70); failure to
hear witnesses and experts and to examine evidence following a plea of not guilty (arts. 162
to 171); and failure to consider submissions on punishment before passing judgment (art.
172).
(iii)
In relation to the narcotics-related charges
46.
The source recalls that there were separate but connected proceedings against Mr.
Moubarak for possession of a very small quantity of cannabis (less than 5 grams), in which
there were further clear violations of his right to a fair trial. On 6 December 2018, Mr.
Moubarak was sentenced to four years’ imprisonment for this offence, which was grossly
disproportionate by Kuwaiti standards.
47.
With reference to the court judgment, the source indicates that Mr. Moubarak’s
conviction relied on the testimony of a police officer to whom he had allegedly admitted
possession, although the actual statement was not shared. This admission was denied by
Mr. Moubarak, and the judgment confirmed that as soon as he was able to obtain an
attorney, he specifically denied the charge. His defence was that he had not been present in
the premises in which the cigarettes had been found for four months, and that drug tests
taken upon his arrest, which was the same day that he returned to Kuwait, showed no traces
of narcotics.
48.
The source adds that in rejecting Mr. Moubarak’s defence, the court relied on an
uncorroborated statement by a police officer that had not been independently recorded at
the time, and it ignored the evidence supporting Mr. Moubarak’s defence, which it
dismissed as “an attempt to wriggle out of punishment”. In other words, the court
reportedly applied no burden of proof and merely relied on the police statement. The source
submits that this was an unfair conviction and that the principle of equality of arms and the
need to give fair consideration to the defence case were ignored, and that the situation was
exacerbated by a disproportionate sentence.
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Response from the Government
49.
On 22 February 2019, the Working Group transmitted the allegations made by the
source to the Government through its regular communication procedure. The Working
Group requested the Government to provide, by 23 April 2019, detailed information about
the current situation of Mr. Moubarak and any comments on the source’s allegations.
Moreover, the Working Group called upon the Government to ensure Mr. Moubarak’s
physical and mental integrity.
50.
On 25 February 2019, the Government sought an extension of the deadline to submit
its response. In conformity with paragraph 16 of its methods of work, the Working Group
granted an extension of one month, for the Government to submit its response by 23 May
2019. The Government submitted its response to the regular communication on 16 and 21
May 2019.
51.
The Government claims that Kuwait is a leading State in the region when it comes to
freedom of expression, diverse liberties, and the separation and independence of powers,
including the judiciary, an elected parliament and free media, underscoring the status of
human rights in the country. The human rights norms are reflected in the Constitution, the
Criminal Code, the Code of Criminal Procedure, the Prisons Regulation Act (No. 26 of
1962) and other legislation, which are enforced by the judiciary, consisting of the criminal
courts and the Public Prosecutor’s Office. In particular, the Government underlines that
article 34 of the Constitution provides for the right to be presumed innocent until proven
guilty in a court of law and the right of defence.
52.
The Government considers that the prosecution and trial for possession of narcotics
and breach of trust cannot be disguised as human rights issues. The Government refers to
apparent inconsistencies in the source’s allegations, including the following: the welcome
extended by the company to Mr. Moubarak upon his return to Kuwait on 3 April 2018 after
his earlier dismissal in December 2017; the denial of drug possession followed by a
statement that the narcotics charge merely constitutes a misdemeanour; the reported denial
of food and water for 48 hours, which contradicts the existing law, the lack of reported
consequences of that denial on his health, and the otherwise humane treatment that he
received in detention; and the company’s alleged influence over the prosecution and its
involvement in the investigation and the proceedings, which the Government considers
conjectural and unrealistic.
53.
The Government reports that the company reported the theft of four electronic
storage devices (hard drives) and a laptop from its office by Mr. Moubarak. The incident
was referred to the first-instance court and a hearing was scheduled. The Criminal
Investigation Department of Al-Asimah Governorate arrested Mr. Moubarak on 3 April
2018 in connection with two separate misdemeanour cases, of breach of trust and theft,
after obtaining the requisite authorization from the Public Prosecution’s Office. Mr.
Moubarak admitted responsibility for the first incident and denied responsibility for the
second incident, and specified the location of the stolen items. The officers who searched
his residence found alcoholic beverages and two cigarettes suspected of containing narcotic
substances.
54.
The Government adds that Mr. Moubarak’s confiscated items were placed in the
Investigation Bureau at Shuwaikh police station, and his lawyer failed to pick them up
when invited to do so. Mr. Moubarak’s new lawyer later came to pick them up, and was
also asked to collect Mr. Moubarak’s Lebanese travel document in the Al-Asimah Criminal
Investigation Department but failed to do so.
55.
According to the Government, Mr. Moubarak faced two charges. The first charge
was breach of trust. The first-instance court, in Mr. Moubarak’s presence, sentenced him to
two years in prison with labour and ordered his deportation after serving his sentence. Mr.
Moubarak was officially released on 27 June 2018 with a financial guarantee of 5,000
Kuwaiti dinars and was prohibited from travelling until a judgment had been handed down
on appeal. The Court of Appeal upheld the judgment of the first-instance court, and the
Court of Cassation rejected the application.
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56.
The second charge was possession or acquisition of narcotic substances for the
purposes of consumption. Mr. Moubarak was released with a financial guarantee of 500
Kuwaiti dinars. The first-instance court sentenced him, in absentia, to four years in prison
with labour and a fine of 1,000 Kuwaiti dinars, and ordered the confiscation of the seized
property as well as his deportation after serving his sentence. The Court of Appeal ruled
that the appeal filed by the Public Prosecutor’s Office should be suspended pending expiry
of the date of opposition thereto, or determination, adjudication and expiry of the date of
appeal.
57.
The Government states that Mr. Moubarak illegally left Kuwait while the appeal
against his conviction and sentence was pending.
58.
The Government also claims that article 5 of the Prisons Regulation Act requires all
prisons to keep records of prisoners’ complaints and requests, but that Mr. Moubarak had
submitted no complaints. He was treated properly and humanely throughout his period of
detention.
59.
According to the Government, the shaving of Mr. Moubarak’s head for health and
security reasons was authorized under article 20 of Decree No. 25 of 1979 concerning
internal prison regulations. Air-conditioned and safe buses are used to transport prisoners to
external locations.
60.
To demonstrate that Mr. Moubarak’s right to receive visits was respected, the
Ministry of the Interior issued a log table recording regular visits to Mr. Moubarak between
9 April 2018 and 3 July 2018 from representatives of the Canadian embassy, his lawyer, his
family and friends and representatives of the Anglican Church.
61.
The Government also note that a complaint may be filed by any person with the
Complaints Division of the General Department for Oversight and Inspection in the event
of abusive and unlawful action by a member of the police force. The necessary
investigations are conducted and, if a violation is found, appropriate legal action is taken.
According to the Government, Mr. Moubarak has never filed a complaint against any
members of the police force with respect to the above-mentioned allegations and
observations.
62.
Additional information provided by the Ministry of Justice and the Public
Prosecution Service corroborates the earlier submissions by the Government. In the case of
breach of trust, the company filed a complaint that Mr. Moubarak had made illegal transfers
of funds as payments for legal advice to another company, which he owned. In July 2018,
the first-instance court sentenced Mr. Moubarak to 2 years in prison with labour, and
ordered his deportation after serving his sentence. He appealed the judgment, and the Court
of Appeal suspended his sentence pending appeal on 13 August 2018, but upheld the
judgment on 27 August 2018. He appealed again, but the appeal was dismissed on 11
December 2018 because Mr. Moubarak failed to appear.
63.
The Ministry also contends that the evidence that led to the narcotics-related charges
was seized from Mr. Moubarak’s residence during the execution of a warrant, issued by the
Public Prosecution Service in the above-mentioned case of breach of trust, to search his
residence for computers and documents relating to the transfer of funds from the company
to his own corporation. On 6 December 2018, the court sentenced Mr. Moubarak, in
absentia, to four years in prison with labour and a fine of 1,000 Kuwaiti dinars, and ordered
his deportation after serving his sentence. The Public Prosecutor’s Office filed an appeal
and, on 11 February 2019, the Court of Appeal decided to suspend the hearing of the appeal
pending expiry of the date of opposition thereto, or determination, adjudication and expiry
of the date of appeal.
Further comments from the source
64.
On 17 May 2019, the Working Group transmitted the Government’s response to the
source and requested the source to provide, by no later than 3 June 2019, comments or
observations to the Government’s response. On 10 June 2019, the source provided further
comments on the Government’s response.
A/HRC/WGAD/2019/82
10
65.
Rejecting most of both the legal and the factual contentions presented by the
Government, the source comments that Mr. Moubarak suffered a total of 93 days of
arbitrary detention following his arrest, since Mr. Moubarak was given no opportunity to
challenge his detention before a judge for over two weeks and the judges failed to give any
reasons for depriving him of his liberty.
66.
The source also recalls the irregularities found in the court proceedings. The source
claims that his two-year sentence was imposed during an unfair trial and appeal, at which
Mr. Moubarak was not permitted to appear and give evidence, to challenge the evidence
against him by way of cross-examination or by calling his own witnesses, or to have access
to the evidence in the prosecution file that was available to the judges.
67.
The source also contends that the four-year sentence on the narcotics-related charges
is arbitrary because the trial court convicted him without taking account of evidence of his
innocence. The court did not permit cross-examination of the sole witness against him, nor
did it permit him to give his own testimony or call any defence witnesses. Moreover, the
sentence of four years in prison was wholly disproportionate to the offence and out of
alignment with non-custodial sentences passed in similar cases.
68.
The source takes the view that the Government has not answered most of the
complaints, other than by making general statements about Kuwaiti law. The Government
claims that the Commission on Human Rights, in its resolution 1997/50, excluded from the
definition of “arbitrary detention” any detention that resulted from a final decision of a
national tribunal. However, this claim is incorrect. As the Working Group explained in its
revised Fact Sheet No. 26, the Commission went on to state in resolution 1997/50 that
deprivation of liberty resulting from the national court’s decision was considered not to be
arbitrary only when that decision was (a) in accordance with domestic law, and (b) in
accordance with other relevant international standards set forth in the Universal Declaration
of Human Rights and the relevant international instruments accepted by the States
concerned.
69.
The source believes that the convictions and sentences imposed on Mr. Moubarak
were the result of trials that were unfair and unconstitutional under article 34 of the
Constitution and were in breach of the Universal Declaration of Human Rights and of the
Covenant. The fact that his detention resulted from a legal process does not, therefore,
prevent it from being arbitrary.
Discussion
70.
The Working Group thanks the source and the Government for their submissions in
relation to Mr. Moubarak’s deprivation of liberty.
71.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations
(A/HRC/19/57, para. 68).
Category I
72.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without legal basis.
73.
The Working Group recalls that article 9 (2) of the Covenant requires that anyone
who is arrested is not only informed at that time of the reasons for the arrest but also
promptly informed of any charges against them. 1 Despite the divergence and conflict
between the versions of events provided by the Government and the source, the Working
Group finds that the Government has not fully substantiated its rebuttal of the allegation
that Mr. Moubarak was neither shown an arrest warrant nor informed of the reasons for his
arrest at the time of his arrest. The Government reports that the authorities were in
1 See, for example, opinion No. 42/2018.
A/HRC/WGAD/2019/82
11
possession of a valid warrant to search Mr. Moubarak’s residence, delivered by an
investigating judge in the case of breach of trust. However, the Government fails to state
whether Mr. Moubarak was shown this warrant at any point in the proceedings. The
Working Group therefore concludes that the search and seizure in Mr. Moubarak’s
residence and his arrest were conducted without him being immediately informed of their
legal basis through the presentation of a warrant.
74.
The Working Group finds that, for it to be possible to invoke a legal basis for Mr.
Moubarak’s deprivation of liberty, the authorities should have informed him, at the time of
arrest, of the reasons for his arrest, and should have promptly informed him of the charges
against him.2 Their failure to do so violates article 9 of the Universal Declaration of Human
Rights and article 9 (2) of the Covenant, as well as principle 10 of the Body of Principles,
and renders their arrest devoid of any legal basis. According to article 9 (1) of the
Covenant, no one may be deprived of liberty except on such grounds and in accordance
with such procedure as are established by law. In the present case, Mr. Moubarak was
arrested without an arrest warrant and without being informed at that time of the reasons for
his arrest, in violation of article 9 (1) and (2) of the Covenant. In order for a deprivation of
liberty to have a legal basis, it is not sufficient for there to be a law that may authorize the
arrest. The authorities must invoke that legal basis and apply it to the circumstances of the
case through an arrest warrant and by following other procedures, including providing the
reasons for the arrest and giving prompt notification of the charges.
75.
The source further maintains, and the Government has failed to dispute in a
convincing manner, that Mr. Moubarak was held incommunicado for six days from 3 to 9
April 2018 following his arrest. The visitor log for Mr. Moubarak, provided by the
Government, does not show visits before 9 April 2018, and thus does not contradict the
source’s claim. In addition, the Government does not prove that Mr. Moubarak’s relatives
or the Canadian consulate were notified of his arrest and subsequent detention, nor does it
put forward evidence that he was given access to a lawyer during the early stage of his
detention. Such deprivation of liberty, entailing a refusal to disclose the fate or whereabouts
of the persons concerned and to acknowledge their detention, has no valid legal basis under
any circumstances, and is inherently arbitrary as it places the person outside the protection
of the law, in violation of article 6 of the Universal Declaration of Human Rights and article
16 of the Covenant.
76.
The Working Group notes that Mr. Moubarak was not brought promptly before a
judge – that is, within 48 hours of his arrest barring absolutely exceptional circumstances,
in accordance with the international standard3 – or afforded the right to take proceedings
before a court so that it could decide without delay on the lawfulness of his detention, in
accordance with articles 3, 8 and 9 of the Universal Declaration, articles 2 (3) and 9 (1), (3)
and (4) of the Covenant and principles 11, 32 and 37 of the Body of Principles. In addition,
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 indicate
that the right to challenge the lawfulness of detention before a court is a self-standing
human right, the absence of which constitutes a human rights violation, and is essential to
preserve legality in a democratic society (A/HRC/30/37, paras. 2–3). This right, which is in
fact a peremptory norm of international law, applies to all forms and situations of
deprivation of liberty.4
77.
The Working Group therefore considers that Mr. Moubarak’s deprivation of liberty
from 3 to 9 April 2018 lacks a legal basis and is thus arbitrary, falling under category I.
2 For example, opinion No. 10/2015, para. 34. See also opinion No. 46/2019, para. 51.
3 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,
para. 33, citing Kovsh v. Belarus (CCPR/C/107/D/1787/2008), paras. 7.3–7.5. See also
CCPR/C/SLV/CO/6, para. 14; CCPR/CO/70/GAB, para. 13; and CCPR/C/79/Add.89, para. 17.
4 Opinion No. 39/2018, para. 35.
A/HRC/WGAD/2019/82
12
Category III
78.
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 an
arbitrary character, and therefore fall under category III.
79.
The Working Group is of the view that Mr. Moubarak’s incommunicado detention
for a six-day period and the apparent denial to him of food and water for 48 hours
undermined his ability to defend himself and hindered his exercise of due process and fair
trial rights.
80.
The Working Group therefore refers the present case to the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment for further
consideration.
81.
The Working Group notes that the authorities failed to respect Mr. Moubarak’s right
to legal assistance at all times – which is inherent to the right to liberty and security of
person – or the right to a fair and public hearing by a competent, independent and impartial
tribunal established by law, in accordance with articles 3, 9, 10 and 11 (1) of the Universal
Declaration of Human Rights and articles 9 (1) and 14 (1) of the Covenant. He was
deprived of his right to legal counsel at the critical stage of criminal proceedings during his
interrogation, while being held incommunicado, without the presence of his lawyers,
effectively removing procedural protection against torture and ill-treatment, as reported by
the source. Indeed, the source reports a tentative intervention of the company’s lawyer in
the absence of Mr. Moubarak’s own lawyer during this period, which shows the risk to the
right to legal assistance of incommunicado detention.
82.
The Working Group also concludes that the Government failed to observe its
obligation under article 36 (b) of the Vienna Convention on Consular Relations, to which it
is a party, to forward without delay any communication addressed to the consular post by
the person arrested, in prison, custody or detention. The Government has offered no
explanation for its denial of consular assistance to Mr. Moubarak in the critical period from
3 to 9 April 2018.
83.
The Working Group recalls that all persons charged with a penal offence have the
right to be presumed innocent until proved guilty according to law in a public trial at which
they have had all the guarantees necessary for their defence, and that everyone is entitled to
a fair and public hearing by a competent, independent and impartial tribunal established by
law, in accordance with articles 10 and 11 of the Universal Declaration of Human Rights
and article 14 of the Covenant.
84.
The Working Group also recalls that, as the Human Rights Committee stated in its
general comment No. 32 (2007) on the right to equality before courts and tribunals and to a
fair trial, article 14 (3) (e) of the Covenant provides for the right to have witnesses admitted
that are relevant for the defence and to be given a proper opportunity to question and
challenge witnesses against them at some stage of the proceedings. The source alleges that
Mr. Moubarak’s request for an expert testimony in the case of breach of trust was ignored.
The Government did not address these allegations directly, although it had the opportunity
to do so. The Working Group thus considers that there have also been serious prima facie
breaches of Mr. Moubarak’s rights under article 14 (3) (e) of the Covenant.
85.
In this case, the source claims that the trial was conducted in an expeditious manner
and with no opportunity given to Mr. Moubarak’s lawyer to provide a defence on the
substance of the case. The same was reported with regard to the hearings at the Court of
Appeal and the Court of Cassation. The source also reported that Mr. Moubarak was not
aware that the hearing on 22 July 2018 would be on the substance and thus did not
participate, which was later held against him by the Court of Cassation. In both cases, Mr.
Moubarak’s lawyers were unable to present evidence and witnesses for the defence of their
client or to have access to the prosecution file and cross-examine the prosecution’s witness.
In its reply, the Government stated that the article 34 of the Kuwaiti Constitution,
guaranteeing the presumption of innocence and the right of defence, was properly
implemented by the courts. In the absence of specific information by the Government
showing that Mr. Moubarak’s right to a fair trial right was indeed guaranteed, the Working
A/HRC/WGAD/2019/82
13
Group concludes that the source’s statement is credible and that the facts reported constitute
violations of the right to a fair trial under article 14 (3) of the Covenant.
86.
Lastly, the Working Group has considered the source’s allegations of a number of
evidentiary irregularities during Mr. Moubarak’s trial, which affected the principle of
equality of arms, shifted the burden of proof and interfered with the presumption of
innocence. The Working Group emphasizes that it has not examined the substance of the
evidence; it has considered only whether international human rights standards have been
respected in this case. However, the Working Group has noted that the source contends that
in the case of breach of trust, no witnesses were called by the first-instance court – which
reportedly did not hear the case on the merits – nor by the Court of Appeal, nor by the
Court of Cassation. The proceedings were reportedly expedited and only the civil
complainant was allowed to present arguments. In addition, in the case related to the
narcotics charges, the prosecution arguments were reportedly based solely on police
testimony. The Working Group does not act as a national court or appellate body and does
not assess the sufficiency of the evidence presented at trial.5 The Working Group considers
that the alleged evidentiary irregularities raised by the source were a matter for the
domestic courts, but that, in the case of breach of trust, they appear not to have been raised
or fully considered in the trial and appeal. On the basis of all the information submitted by
the parties, the Working Group therefore concludes that there was a violation of
international human rights law, and in particular of article 14 (2) of the Covenant.
87.
These combined violations are so substantial that they amount to effective breaches
of the right to a fair trial. The detention of Mr. Moubarak was therefore arbitrary under
category III, and any further detention based on these proceedings would also be arbitrary.
88.
Given the above considerations, the Working Group concludes that the violations of
the right to a fair trial and due process are of such gravity as to give Mr. Moubarak’s
deprivation of liberty an arbitrary character that falls within category III.
Disposition
89.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Waleed Antoine Moubarak, being in contravention of
articles 3, 6, 8, 9, 10 and 11 (1) of the Universal Declaration of Human Rights and
articles 2 (3), 9 (1), (2), (3) and (4), 14 (1), (2) and (3) and 16 of the International
Covenant on Civil and Political Rights, is arbitrary and falls within categories I and
III.
90.
The Working Group requests the Government of Kuwait to take the steps necessary
to remedy the situation of Mr. Moubarak 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.
91.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Moubarak an enforceable right to
compensation and other reparations, in accordance with international law.
92.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Moubarak and to take appropriate measures against those responsible for the violation of
his rights.
93.
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, for appropriate action.
94.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
5 Opinions No. 57/2016, para. 115, and No. 10/2000, para. 9.
A/HRC/WGAD/2019/82
14
Follow-up procedure
95.
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. Moubarak remains at liberty;
(b)
Whether compensation or other reparations have been made to Mr.
Moubarak;
(c)
Whether an investigation has been conducted into the violation of Mr.
Moubarak’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 Kuwait with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
96.
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.
97.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of 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.
98.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and has 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.6
[Adopted on 22 November 2019]
6 Human Rights Council resolution 42/22, paras. 3 and 7.