Opinion; Subjects: UNITED ARAB EMIRATES, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Erwägungen (50 Absätze)
E. 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.
E. 2 In accordance with its methods of work (A/HRC/36/38), on 9 December 2019 the Working Group transmitted to the Government of the United Arab Emirates a communication concerning Abdullah Awad Salim al-Shamsi. The Government replied to the communication on 28 January 2020. The State is not a party to the International Covenant on Civil and Political Rights.
E. 3 The Working Group regards deprivation of liberty as arbitrary in the following cases: (a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her) (category I); (b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant (category II); (c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III); (d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV); (e) When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, United Nations A/HRC/WGAD/2020/34 General Assembly Distr.: General 14 October 2020 Original: English A/HRC/WGAD/2020/34 2 disability, or any other status, that aims towards or can result in ignoring the equality of human beings (category V). Submissions Communication from the source
E. 4 Abdullah Awad Salim al-Shamsi is a national of Oman born in 1998. At the time of the arrest, Mr. Al-Shamsi was a student attending high school in the United Arab Emirates. He usually resides in Al-Ain district, Abu Dhabi. a. Arrest and detention
E. 5 The source reports that on 18 August 2018 at 11 a.m., Mr. Al-Shamsi was returning from the industrial area of Abu Dhabi to his home in Al-Ain district when State security forces arrested him on the road near Green Mubazzarah, Al-Ain district. They did not show an arrest warrant.
E. 6 According to the source, on 19 August 2018, Mr. Al-Shamsi’s parents reported his disappearance at the police station in Zakhir, in Al-Ain district, and were subsequently informed that the police did not know his whereabouts. On the same day, Mr. Al-Shamsi’s parents notified the Embassy of Oman in Abu Dhabi of the arrest, but the Embassy was not given the opportunity to visit Mr. Al-Shamsi and access has been denied by the authorities of the United Arab Emirates.
E. 7 The source submits that, after his arrest, Mr. Al-Shamsi was taken to a secret detention centre and was held incommunicado in solitary confinement for the first six months of his detention. The room in which he was detained had no windows, and he could not identify the location of his detention and is uncertain as to whether or not it was underground.
E. 8 According to the source, one month after Mr. Al-Shamsi’s arrest, security forces raided his parents’ home and forcibly isolated the family in one room while they searched the rest of the house and took an old mobile phone and the student’s laptop. At a similar time, in connection with Mr. Al-Shamsi’s arrest the previous month, his uncle was arrested. His uncle, who has been working in Qatar for more than 10 years, has been charged, and his trial began on 30 October 2019 on the basis of charges related to “sharing information with the State of Qatar”.
E. 9 The source reports that during the first three months of his detention, Mr. Al-Shamsi was subjected to torture carried out by State security members, including beatings, harassment, threats, electrocution, nail removal, starvation and prolonged sleep deprivation. The torture was allegedly designed to force Mr. Al-Shamsi to confess that he had been working with his uncle for the benefit of Qatar and in opposition to the United Arab Emirates. In connection to this claim, the authorities have also informally alleged that Mr. Al-Shamsi received financial support from his uncle. However, reportedly these allegations are fabricated given that the relationship between Mr. Al-Shamsi’s family and his uncle broke down many years ago.
E. 10 In the light of the above, the source argues that Mr. Al-Shamsi has been targeted to provide a coerced confession against his uncle. This is particularly concerning as, during the first hearing of his uncle’s trial, on 30 October 2019, the prosecutor stated that Mr. Al- Shamsi had made confessions that incriminated himself and his uncle.
E. 11 The source reports that in early February 2019, Mr. Al-Shamsi was transferred to Al-Wathba prison in Abu Dhabi. His parents have been able to visit him every Thursday since then, but he has been unable to meet with a lawyer as he has not yet been referred to trial and it remains unclear as to whether Mr. Al-Shamsi has been formally charged. The State Security prosecutor has been extending Mr. Al-Shamsi’s detention on a regular basis without providing any legal grounds for doing so or providing any possibility for Mr. Al- Shamsi to challenge his deprivation of liberty.
E. 12 According to the source, Mr. Al-Shamsi has a malignant tumour in his remaining kidney. Years prior to his arrest, he had his other kidney removed and was subsequently A/HRC/WGAD/2020/34 3 treated for cancer. At that time, he was unable to study in school so continued his studies at home during the long treatment period. Mr. Al-Shamsi also has a psychiatric condition, and has met with the prison doctors. However, his condition has worsened recently. Reportedly, he had been subjected to “hypnosis sessions” at Khalifa medical hospital, while the aim of and methodology used in such sessions is unclear. b. Analysis of violations i. Category I
E. 13 The source argues that on 18 August 2018, Mr. Al-Shamsi was arrested without a warrant while returning from the industrial area of Abu Dhabi to his residence in Al-Ain district. He was not provided with any reason for his arrest and there do not appear to be any circumstances that would give reasonable cause to arrest him in flagrante delicto. As such, his detention was not grounded in law, in violation of Mr. Al-Shamsi’s rights under articles 3 and 9 of the Universal Declaration of Human Rights, principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and article 14 (1) of the Arab Charter on Human Rights.
E. 14 According to the source, during the first six months of his detention, Mr. Al-Shamsi was forcibly disappeared and was allegedly not informed of the charges against him, in violation of his right to be promptly informed of the reasons for the arrest and the charges being brought against him, under article 99 of Federal Law No. (35) of 1992 concerning the Criminal Procedural Law (“Criminal Procedural Law”), guideline 17 of the Basic Principles and Guidelines on Remedies and Procedures on the Right of Persons Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 10 of the Body of Principles and article 14 (3) of the Arab Charter on Human Rights. It remains unclear as to whether Mr. Al-Shamsi has been formally charged yet.
E. 15 The source recalls that enforced disappearance is a prima facie form of arbitrary detention. The period during which Mr. Al-Shamsi was forcibly detained therefore constituted a violation of his right to be considered a person before the law, in contravention of article 6 of the Universal Declaration of Human Rights and article 22 of the Arab Charter on Human Rights. The enforced disappearance of Mr. Al-Shamsi further violates articles 26 and 28 of the Constitution of the United Arab Emirates, which enshrine the right to personal liberty and the presumption of innocence.
E. 16 The source alleges that in placing him outside of the protection of the law, the enforced disappearance of Mr. Al-Shamsi deprived him of his legal safeguards as a detainee, including the right to habeas corpus and the right to be promptly before a judicial authority, in violation of Mr. Al-Shamsi’s rights under articles 8, 9 and 10 of the Universal Declaration of Human Rights, articles 14 (6) and 22 of the Arab Charter on Human Rights, principles 11, 32 and 37 of the Body of Principles and principles 8 and 10 of the Basic Principles and Guidelines. In addition, the enforced disappearance of Mr. Al-Shamsi deprived him of his right to submit a grievance in relation to the extension of his detention beyond the lawful period of seven days, renewable for another period not exceeding 14 days, under article 110 of the Criminal Procedural Law.
E. 17 In the light of the above, the source argues that Mr. Al-Shamsi’s detention is arbitrary under category I. ii. Category III
E. 18 The source further submits that Mr. Al-Shamsi’s detention is arbitrary owing to the severe violations of his right to a fair trial.
E. 19 The source argues that despite his prolonged detention, Mr. Al-Shamsi remains unable to meet with legal counsel, has not been provided with access to his case file, and believes that he has not been formally informed of the charges against him. The source considers that this is in violation of Mr. Al-Shamsi’s right to have the attendance of legal counsel during the investigatory stage of proceedings under article 100 of the Criminal Procedural Law, as well as violating the essence of the right to legal assistance, preparation for defence and equality of arms as guaranteed under articles 10 and 11 (1) of the Universal A/HRC/WGAD/2020/34 4 Declaration of Human Rights, article 16 of the Arab Charter on Human Rights and principle 9 of the Basic Principles and Guidelines. Moreover, Mr. Al-Shamsi’s initial enforced disappearance inherently negated the essence of the right to legal assistance, preparation for defence and free communication with legal counsel under article 11 (1) of the Universal Declaration of Human Rights.
E. 20 According to the source, notwithstanding efforts made by the Embassy of Oman, Mr. Al-Shamsi was denied his right to have access to consular assistance under article 36 (2) of the Vienna Convention on Consular Relations and principle 16 (2) of the Body of Principles.
E. 21 The source alleges that Mr. Al-Shamsi was forcibly disappeared and held in solitary confinement for the first six months of his detention. In addition, Mr. Al-Shamsi was subjected to other forms of torture, including beatings, harassment, threats, electrocution, nail removal, starvation and prolonged sleep deprivation. The use of torture contravenes the absolute prohibition of torture as enshrined in articles 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 5 of the Universal Declaration of Human Rights and principle 6 of the Body of Principles. It also violates article 8 of the Arab Charter on Human Rights and article 26 of the Constitution.
E. 22 The source submits that the torture occurred as a means of forcing Mr. Al-Shamsi to confess to working with his uncle for the benefit of Qatar and in opposition to the United Arab Emirates. At the first hearing of the trial of Mr. Al-Shamsi’s uncle, the prosecutor advised Mr. Al-Shamsi’s uncle that Mr. Al-Shamsi’s confessions incriminated himself and his uncle. There is therefore a high risk that the confessions extracted from Mr. Al-Shamsi under torture will be invoked as evidence in the court proceedings of Mr. Al-Shamsi and his uncle, in violation of article 15 of the Convention against Torture and guideline 12 of the Basic Principles and Guidelines.
E. 23 The source argues that moreover, enforced disappearance enables torture and constitutes a form of torture per se, in relation to both the disappeared persons and to their relatives.1 As such, by forcibly disappearing Mr. Al-Shamsi, the authorities of the United Arab Emirates violated their obligations under the Convention against Torture. Response from the Government
E. 24 On 9 December 2019, the Working Group transmitted the allegations made by the source to the Government through its regular communications procedure. The Working Group requested the Government to provide, by 7 February 2020, detailed information about the situation of Mr. Al-Shamsi and any comments on the source's allegations. Moreover, the Working Group called upon the Government to ensure Mr. Al-Shamsi’s physical and mental integrity.
E. 25 In its response of 28 January 2020, the Government states that Mr. Al-Shamsi was arrested in accordance with the rules and legal principles followed in the United Arab Emirates, after having been informed of the reason for his arrest and presented with the arrest and search warrants, which he reviewed in detail.
E. 26 According to the Government, on 15 November 2018, Mr. Al-Shamsi was referred to the competent prosecution, and on 13 January 2020, he was referred to the competent court, for committing criminal acts in violation of the laws in force.
E. 27 The Government claims that Mr. Al-Shamsi was not arbitrarily detained, held in solitary confinement, tortured, physically abused or deprived of his personal rights. Instead, he was housed with other prisoners in one of the qualified penal establishments that met all the required standards to ensure the safety of prisoners in terms of food, environment, air conditioning and ventilation. 1 The source refers to Hernández Colmenarez and Guerrero Sánchez v. Bolivarian Republic of Venezuela (CAT/C/54/D/456/2011). A/HRC/WGAD/2020/34 5
E. 28 The Government adds that Mr. Al-Shamsi has received the necessary medical attention with periodic treatment by doctors, who provide medication and perform other procedures.
E. 29 Lastly, the Government maintains that visits and telephone calls, which are allowed and are regulated by the procedures followed by the penitentiary institution, have been made by Mr. Al-Shamsi’s relatives. Further comments from the source
E. 30 In its response, the source states that the evidence supplied by the Government, or lack thereof, supports the source’s account of events concerning Mr. Al-Shamsi’s detention.
E. 31 Concerning the allegation of arbitrary arrest, the source points out that the Government provided no supporting evidence, such as a copy of the arrest warrant, to corroborate its claim that Mr. Al-Shamsi was informed of the reason for his arrest and presented with arrest and search warrants.
E. 32 The source also notes that the Government has not directly addressed the allegation that Mr. Al-Shamsi was subjected to six months of enforced disappearance, which in and of itself constitutes a form of arbitrary detention.
E. 33 With respect to the Government’s claim that Mr. Al-Shamsi was not held in solitary confinement, the source emphasizes that the records provided by the Government demonstrates that he was not in contact with the outside world for five months, since they show that he did not make a phone call until 20 February 2019, after his transfer to an official detention facility, and did not receive visits until 31 January 2019, even though his arrest was on 18 August 2018.
E. 34 Furthermore, the source maintains that the Government has failed to provide evidence to substantiate its claims that Mr. Al-Shamsi was not held in solitary confinement.
E. 35 According to the source, the Government has confirmed in its response that Mr. Al- Shamsi was arrested on 18 August 2018 but was not brought before the prosecution until 15 November 2018 and was not referred to the court until 13 January 2020. The Government provides no information as to the charges faced by Mr. Al-Shamsi and no reasons to justify his pretrial detention for nearly one and a half years.
E. 36 In addition, the source notes that the Government’s timeline of events indicates a clear violation of Mr. Al-Shamsi’s right to habeas corpus and the right to be brought promptly before a judicial authority. He was clearly deprived of his right to submit a grievance in relation to the extension of his detention beyond the lawful period of 7 days, renewable for another period not exceeding 14 days, under article 110 of the Criminal Procedural Law.
E. 37 The source further indicates that the Government did not address the allegation that Mr. Al-Shamsi had been denied access to legal counsel and to consular assistance in violation of article 100 of Criminal Procedural Code, articles 10 and 11 (1) of the Universal Declaration of Human Rights, article 16 of the Arab Charter on Human Rights, principle 9 of the Basic Principles and Guidelines, article 36 (2) of the Vienna Convention on Consular Relations and principle 16 (2) of the Body of Principles.
E. 38 The source adds the update that, following Mr. Al-Shamsi’s referral to the court on 13 January 2020, his first hearing took place on 5 February 2020. However, his lawyer has not yet been granted access to his case file, severely undermining his right to equality of arms.
E. 39 With respect to the allegation of torture and ill-treatment, the source maintains that the Government has failed to substantiate its position with evidence. The source states that between the Working Group’s communication sent to the Government on 9 December 2019 and the latter’s response on 28 January 2020, Mr. Al-Shamsi was tortured into making false confessions on video on 7 January 2020. He has also been harassed by the authorities, who threatened to arrest his mother and siblings if he did not make a confession. A/HRC/WGAD/2020/34 6
E. 40 Lastly, the source asserts that the Government continues to deny access to Mr. Al- Shamsi’s medical records and that his health remains in poor condition as he has not received proper treatment. Discussion
E. 41 The Working Group thanks the source and the Government for their submissions in relation to Mr. Al-Shamsi’s deprivation of liberty.
E. 42 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. Furthermore, mere assertions by the Government that lawful procedures have been followed are not sufficient to rebut the source’s allegations (A/HRC/19/57, para. 68). Category I
E. 43 The Working Group will first consider whether there have been violations under category I, which concerns deprivation of liberty without any legal basis.
E. 44 The source submits, and the Government has failed to substantiate its claim to the contrary, that Mr. Al-Shamsi was not presented with an arrest warrant or informed of the reasons for his arrest by the State Security Directorate at the time of arrest on 18 August 2018.
E. 45 As the Working Group has stated, in order for a deprivation of liberty to have a legal basis, it is not sufficient for there to be a law authorizing the arrest. The authorities must invoke that legal basis and apply it to the circumstances of the case through an arrest warrant, which was not done in the present case.2
E. 46 International law includes the right to be presented with an arrest warrant to ensure the exercise of effective control by a competent, independent and impartial judicial authority, which is procedurally inherent in the right to liberty and security and the prohibition of arbitrary deprivation of liberty under articles 3 and 9 of the Universal Declaration of Human Rights and principles 2, 4 and 10 of the Body of Principles.3 The Working Group has been presented with no valid grounds, such as arrest in flagrante delicto, to justify an exception to this principle in the present case.
E. 47 The Working Group also finds that, in order to invoke a legal basis for deprivation of liberty, the authorities should have informed Mr. Al-Shamsi of the reasons for his arrest, at the time of arrest, and informed him of the charges against him promptly.4 Their failure to do so violates article 9 of the Universal Declaration of Human Rights and principle 10 of the Body of Principles, and renders his arrest devoid of any legal basis.5
E. 48 The source further maintains, and the Government has not substantiated its claim to the contrary, that Mr. Al-Shamsi was subjected to enforced disappearance and incommunicado detention for six months from 18 August 2018.
E. 49 The Working Group recalls that enforced disappearance constitutes a particularly aggravated form of arbitrary detention as it places the person outside the protection of the 2 For example, opinions No. 10/2018, para. 45–46; No. 36/2018, para. 40; No. 46/2018, para. 48; No. 9/2019, para. 29; No. 32/2019, para. 29; No. 33/2019, para. 48; No. 44/2019, para. 52; No. 45/2019, para. 51; and No. 46/2019, para. 51. 3 The Working Group has maintained from its early years that the practice of arresting persons without a warrant renders their detention arbitrary. For example, opinions No. 3/2018, para. 43; No. 10/2018, para. 46; No. 26/2018, para. 54; No. 30/2018, para. 39; No. 38/2018, para. 63; No. 47/2018, para. 56; No. 51/2018, para. 80; No. 63/2018, para. 27; No. 68/2018, para. 39; and No. 82/2018, para. 29. See also article 14 (1) of the Arab Charter on Human Rights. 4 For example, opinion No. 10/2015, para. 34. See also opinions No. 32/2019, para. 29; No. 33/2019, para. 48; No. 44/2019, para. 52; No. 45/2019, para. 51; and No. 46/2019, para. 51. 5 See also article 14 (1) and (3) of the Arab Charter on Human Rights. A/HRC/WGAD/2020/34 7 law, in violation of article 6 of the Universal Declaration of Human Rights.6 The Working Group therefore refers the present case to the Working Group on Enforced or Involuntary Disappearances.
E. 50 The Working Group and other experts also stated, in the joint study on global
practices in relation to secret detention in the context of countering terrorism
(A/HRC/13/42), that no jurisdiction should allow for individuals to be deprived of their
liberty in secret for potentially indefinite periods, held outside the reach of the law, without
the possibility of resorting to legal procedures, including habeas corpus (A/HRC/16/47 and
Corr.1, para. 54). In accordance with Human Rights Council resolution 37/3 (paras. 8, 9
and 16), the Working Group stresses that no one is to be held in secret detention, and urges
the Government of the United Arab Emirates to close down promptly all secret detention
facilities.
51.
The Working Group observes that thereupon Mr. Al-Shamsi was not brought
promptly before a judge, within 48 hours of the arrest barring absolutely exceptional
circumstances, as per the international standard set out in the Working Group’s
jurisprudence.7 Furthermore, his pretrial detention, which should be the exception rather
than the rule, lacked a legal basis as it was not based on an individualized determination
that it was reasonable and necessary taking into account all the circumstances, for such
purposes specified in law as to prevent flight, interference with evidence or the recurrence
of crime, accompanied by consideration of alternatives, such as bail, electronic bracelets or
other conditions, rendering detention unnecessary in the particular case. 8 Therefore, the
State has violated article 9 of the Universal Declaration of Human Rights and principles 11,
37 and 38 of the Body of Principles.9
52.
The Working Group further observes that Mr. Al-Shamsi was not afforded the right
to take proceedings before a court so that it might decide without delay on the lawfulness of
his detention in accordance with articles 3, 8 and 9 of the Universal Declaration of Human
Rights and principles 11, 32 and 37 of the Body of Principles.10 Under the Basic Principles
and Guidelines, 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). In
addition, the Working Group notes that judicial oversight of the deprivation of liberty is a
fundamental safeguard of personal liberty and is essential in ensuring that detention has a
legal basis.11
53.
For these reasons, the Working Group considers that Mr. Al-Shamsi’s deprivation of
liberty lacks a legal basis and is thus arbitrary, falling under category I.
Category III
54.
Turning to category III, the Working Group notes that Mr. Al-Shamsi does not
appear to have had access to legal counsel of his choice for 20 months, since the time of his
arrest by the State Security Directorate on 18 August 2018.
55.
In the Working Group’s view, the authorities failed to respect Mr. Al-Shamsi’s right
to legal assistance at all times, which is inherent in the right to liberty and security of
person and the right to a fair and public hearing by a competent, independent and impartial
6 Opinions No. 82/2018, para. 28; No. 18/2019, para. 33; No. 22/2019, para. 67; No. 26/2019, para. 88; No.
28/2019, para. 61; No. 29/2019, para. 54; No. 36/2019, para. 35; No. 41/2019, para. 32; No. 42/2019, para. 48;
No. 51/2019, para. 58; and No. 56/2019, para. 79. See also article 22 of the Arab Charter on Human Rights.
7 Opinions No. 11/2019, para. 63; No. 20/2019, para. 66; No. 26/2019, para. 89; No. 30/2019, para. 30;
No. 36/2019, para. 36; No. 42/2019, para. 49; No. 51/2019, para. 59; No. 56/2019, para. 80; No.
76/2019, para. 38; and No. 82/2019, para. 76.
8 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para. 38.
See also A/HRC/19/57, paras. 48–58.
9 See also articles 14 (1) and (5) and 23 of the Arab Charter on Human Rights.
10 See also articles 12, 14 (1), (5) and (6) and 23 of the Arab Charter on Human Rights.
11 Opinions No. 35/2018, para. 27; No. 83/2018, para. 47; No. 32/2019, para. 30; No. 33/2019, para. 50;
No. 44/2019, para. 54; No. 45/2019, para. 53; No. 59/2019, para. 51; and No. 65/2019, para. 64.
A/HRC/WGAD/2020/34
8
tribunal established by law, in accordance with articles 3, 9, 10 and 11 (1) of the Universal
Declaration of Human Rights. The Working Group considers that this violation
substantially undermined his capacity to defend himself in any subsequent judicial
proceedings. As the Working Group stated in the Basic Principles, persons deprived of their
liberty have the right to legal assistance by counsel of their choice, at any time during their
detention, including immediately after the moment of apprehension, and must be promptly
informed of this right upon apprehension (principle 9); and access to legal counsel should
not be unlawfully or unreasonably restricted (guideline 8). The Working Group therefore
finds a serious violation of articles 10 and 11 (1) of the Universal Declaration of Human
Rights and principles 15, 17 and 18 of the Body of Principles.12
56.
The Working Group also notes the Government’s failure to observe Mr. Al-
Shamsi’s rights, including the right to be informed of his right to consular assistance under
article 36 (1) (b) of the Vienna Convention on Consular Relations. This and other violations
of the rights guaranteed under article 36 (1) (a), (b) and (c) of the Vienna Convention on
Consular Relations constitute grave violations of the rights to due process and to a fair trial
under articles 10 and 11 (1) of the Universal Declaration of Human Rights and principle 16
(2) of the Body of Principles. In fact, Mr. Al-Shamsi’s parents notified the Embassy of
Oman the day after his disappearance and the Omani consular officials sought to visit and
have access to him, only to be turned away by the Government. In accordance with
paragraph 33 (a) of its methods of work, the Working Group refers the present case to the
Special Rapporteur on the human rights of migrants, for appropriate action.
57.
The Working Group further notes the denial of Mr. Al-Shamsi’s due process right to
be visited by and to correspond with his family and to be given adequate opportunity to
communicate with the outside world, subject to reasonable conditions and restrictions as
specified by law or lawful regulations, in accordance with principles 15 and 19 of the Body
of Principles and rules 43 (3) and 58 of the United Nations Standard Minimum Rules for
the Treatment of Prisoners (the Nelson Mandela Rules).13
58.
In the Working Group’s view, Mr. Al-Shamsi’s ongoing pretrial detention in prison,
for 20 months to date, has undermined the presumption of innocence guaranteed under
article 11 (1) of the Universal Declaration of Human Rights and principle 36 (1) of the
Body of Principles.14 Furthermore, there can be no justification for his prolonged pretrial
detention for 20 months with no prospect for trial, during which time he has remained
deprived of liberty, a manifest violation of the right to be tried without undue delay,
guaranteed under articles 10 and 11 (1) of the Universal Declaration of Human Rights.15 He
has yet to be informed of the charges against him.16
59.
The Working Group also expresses its grave concern at the prima facie allegation of
torture during Mr. Al-Shamsi’s pretrial detention, including beatings, electrocution, nail
removal, starvation and prolonged sleep deprivation. The medical examination dated 21
January 2020 does not reliably rebut the allegations of torture over the previous 16 months
to extract confessions from Mr. Al-Shamsi incriminating himself and his uncle. The
Government also offered no explanation to rebut the allegation of threats against his family.
60.
With respect to Mr. Al-Shamsi’s six-month solitary confinement, the Working
Group recalls that the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment has deemed that prolonged solitary confinement, meaning solitary
confinement in excess of 15 days, at which point some of the harmful psychological effects
of isolation can become irreversible (A/63/175, para. 56, and A/66/268, para. 61), 17 or
prolonged incommunicado detention in a secret place (A/56/156, para. 14) may amount to
torture as described in article 1 of the Convention against Torture.
12 See also articles 12, 13 (1) and 16 (2) and (3) of the Arab Charter on Human Rights.
13 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74–75; and No. 45/2019, para. 76.
14 See also article 16 of the Arab Charter on Human Rights.
15 See also article 13 (1) of the Arab Charter on Human Rights.
16 See also articles 14 (3) and 16 (1) of the Arab Charter on Human Rights.
17 Likewise, under rule 44 of the Nelson Mandela Rules, prolonged solitary confinement refers to
solitary confinement for a time period in excess of 15 consecutive days.
A/HRC/WGAD/2020/34
9
61.
The Working Group observes that the competent authorities not only failed to
conduct a prompt and impartial investigation into the allegations of torture, but also failed
to take action to prevent the statements extracted under torture from being used during the
proceedings against Mr. Al-Shamsi and his uncle. In accordance with paragraph 33 (a) of
its methods of work, the Working Group refers the present case to the Special Rapporteur
on the independence of judges and lawyers, for appropriate action.
62.
In this respect, the Working Group recalls that, after her official visit to the United
Arab Emirates in 2014, the Special Rapporteur on the independence of judges and lawyers
reported that more than 200 complaints relating to torture and/or ill-treatment had been
presented before judges and/or prosecutors over the previous few years, but that those
complaints had not been taken into account in judicial proceedings and no independent
investigation into them had allegedly taken place (A/HRC/29/26/Add.2, para. 53).18
63.
The Working Group finds that the source presented credible allegations that the
absolute prohibition of torture, enshrined in article 5 of the Universal Declaration of Human
Rights and articles 2 (1) and 16 (1) of the Convention against Torture,19 has been violated.20
The Government’s failure to take remedial measures also violates articles 12, 13 and 14 (1)
of the Convention against Torture, 21 and principle 33 of the Body of Principles.
Accordingly, the Working Group refers the present case to the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment, for further
consideration.
64.
The Working Group further recalls that torture undermines the minimum guarantees
necessary for one’s defence, especially in the light of the right not to be compelled to testify
against oneself or to confess guilt, under article 11 (1) of the Universal Declaration of
Human Rights. The use of a confession extracted through torture is also contrary to article
15 of the Convention against Torture and principle 21 of the Body of Principles.22
65.
The Working Group expresses its grave concern at Mr. Al-Shamsi’s worsening
physical and psychological condition, including a malignant tumour in his remaining
kidney. Accordingly, the Working Group refers the present case to the Special Rapporteur
on the right of everyone to the enjoyment of the highest attainable standard of physical and
mental health and the Special Rapporteur on the rights of persons with disabilities, for
further consideration.
66.
Given 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 Mr. Al-Shamsi’s deprivation of
liberty an arbitrary character, falling within category III.
Additional observations
67.
The Working Group wishes to comment on other serious allegations made in the
present case, namely the harassment suffered by Mr. Al-Shamsi’s family in connection with
his deprivation of liberty. In September 2018, while Mr. Al-Shamsi was still being
subjected to enforced disappearance at a secret site, the security forces raided his parents’
home and confiscated an old mobile phone and the student’s laptop. As the Government did
not address these allegations, the Working Group accepts them as established as part of the
source’s prima facie case. Under no circumstances is it ever acceptable to subject family
members of a detained person to such harassment.
68.
In its 29-year history, the Working Group has found the United Arab Emirates to be
in violation of its international human rights obligations in at least 26 cases.23 The Working
18 Opinions No. 21/2017, para. 48, and No. 76/2017, para. 76.
19 See also article 8 (1) of the Arab Charter on Human Rights.
20 See also principles 1 and 6 of the Body of Principles and rule 1 of the Nelson Mandela Rules. The
prolonged solitary confinement in particular violates rules 43–45 of the Nelson Mandela Rules.
21 See also article 8 (2) of the Arab Charter on Human Rights.
22 See opinions No. 48/2016, No. 3/2017, No. 6/2017, No. 29/2017 and No. 39/2018.
23 See, for example, opinions No. 47/2017, No. 58/2017, No. 76/2017, No. 30/2018, No. 28/2019 and
No. 55/2019.
A/HRC/WGAD/2020/34
10
Group is concerned that this indicates a systemic problem with arbitrary detention in the
United Arab Emirates, which amounts to a serious violation of international law. 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
Disposition
69.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Abdullah Awad Salim al-Shamsi, being in
contravention of articles 3, 6, 8, 9, 10 and 11 (1) of the Universal Declaration of
Human Rights, is arbitrary and falls within categories I and III.
70.
The Working Group requests the Government of the United Arab Emirates to take
the steps necessary to remedy the situation of Mr. Al-Shamsi without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights. The Working Group encourages the Government to accede
to the International Covenant on Civil and Political Rights.
71.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Al-Shamsi immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law. In the current context of the global coronavirus disease (COVID-19)
pandemic and the threat that it poses in places of detention, the Working Group calls upon
the Government to take urgent action to ensure the immediate release of Mr. Al-Shamsi.
72.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Al-Shamsi and to take appropriate measures against those responsible for the violation of
his rights.
73.
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, the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health, the Special
Rapporteur on the rights of persons with disabilities, the Special Rapporteur on the
independence of judges and lawyers, the Special Rapporteur on the human rights of
migrants and the Working Group on Enforced or Involuntary Disappearances, for
appropriate action.
74.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
75.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Al-Shamsi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Al-
Shamsi;
(c)
Whether an investigation has been conducted into the violation of Mr. Al-
Shamsi’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 the United Arab Emirates with its international
obligations in line with the present opinion;
24 A/HRC/13/42, para. 30. See also, for example, opinions No. 68/2018, para. 60; No. 73/2018, para. 69;
No. 82/2018, para. 53; No. 83/2018, para. 68; and No. 87/2018, para. 80.
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11
(e)
Whether any other action has been taken to implement the present opinion.
76.
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.
77.
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.
78.
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.25
[Adopted on 1 May 2020]
25 Human Rights Council resolution 42/22, paras. 3 and 7.
Volltext (verifizierbarer Originaltext)
GE.20-13564(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-seventh session, 27 April–1 May 2020
Opinion No. 34/2020 concerning Abdullah Awad Salim al-Shamsi
(United Arab Emirates)
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 9 December 2019 the
Working Group transmitted to the Government of the United Arab Emirates a
communication concerning Abdullah Awad Salim al-Shamsi. The Government replied to
the communication on 28 January 2020. The State is not a party to the International
Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
United Nations
A/HRC/WGAD/2020/34
General Assembly
Distr.: General
14 October 2020
Original: English
A/HRC/WGAD/2020/34
2
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
Abdullah Awad Salim al-Shamsi is a national of Oman born in 1998. At the time of
the arrest, Mr. Al-Shamsi was a student attending high school in the United Arab Emirates.
He usually resides in Al-Ain district, Abu Dhabi.
a.
Arrest and detention
5.
The source reports that on 18 August 2018 at 11 a.m., Mr. Al-Shamsi was returning
from the industrial area of Abu Dhabi to his home in Al-Ain district when State security
forces arrested him on the road near Green Mubazzarah, Al-Ain district. They did not show
an arrest warrant.
6.
According to the source, on 19 August 2018, Mr. Al-Shamsi’s parents reported his
disappearance at the police station in Zakhir, in Al-Ain district, and were subsequently
informed that the police did not know his whereabouts. On the same day, Mr. Al-Shamsi’s
parents notified the Embassy of Oman in Abu Dhabi of the arrest, but the Embassy was not
given the opportunity to visit Mr. Al-Shamsi and access has been denied by the authorities
of the United Arab Emirates.
7.
The source submits that, after his arrest, Mr. Al-Shamsi was taken to a secret
detention centre and was held incommunicado in solitary confinement for the first six
months of his detention. The room in which he was detained had no windows, and he could
not identify the location of his detention and is uncertain as to whether or not it was
underground.
8.
According to the source, one month after Mr. Al-Shamsi’s arrest, security forces
raided his parents’ home and forcibly isolated the family in one room while they searched
the rest of the house and took an old mobile phone and the student’s laptop. At a similar
time, in connection with Mr. Al-Shamsi’s arrest the previous month, his uncle was arrested.
His uncle, who has been working in Qatar for more than 10 years, has been charged, and
his trial began on 30 October 2019 on the basis of charges related to “sharing information
with the State of Qatar”.
9.
The source reports that during the first three months of his detention, Mr. Al-Shamsi
was subjected to torture carried out by State security members, including beatings,
harassment, threats, electrocution, nail removal, starvation and prolonged sleep deprivation.
The torture was allegedly designed to force Mr. Al-Shamsi to confess that he had been
working with his uncle for the benefit of Qatar and in opposition to the United Arab
Emirates. In connection to this claim, the authorities have also informally alleged that Mr.
Al-Shamsi received financial support from his uncle. However, reportedly these allegations
are fabricated given that the relationship between Mr. Al-Shamsi’s family and his uncle
broke down many years ago.
10.
In the light of the above, the source argues that Mr. Al-Shamsi has been targeted to
provide a coerced confession against his uncle. This is particularly concerning as, during
the first hearing of his uncle’s trial, on 30 October 2019, the prosecutor stated that Mr. Al-
Shamsi had made confessions that incriminated himself and his uncle.
11.
The source reports that in early February 2019, Mr. Al-Shamsi was transferred to
Al-Wathba prison in Abu Dhabi. His parents have been able to visit him every Thursday
since then, but he has been unable to meet with a lawyer as he has not yet been referred to
trial and it remains unclear as to whether Mr. Al-Shamsi has been formally charged. The
State Security prosecutor has been extending Mr. Al-Shamsi’s detention on a regular basis
without providing any legal grounds for doing so or providing any possibility for Mr. Al-
Shamsi to challenge his deprivation of liberty.
12.
According to the source, Mr. Al-Shamsi has a malignant tumour in his remaining
kidney. Years prior to his arrest, he had his other kidney removed and was subsequently
A/HRC/WGAD/2020/34
3
treated for cancer. At that time, he was unable to study in school so continued his studies at
home during the long treatment period. Mr. Al-Shamsi also has a psychiatric condition, and
has met with the prison doctors. However, his condition has worsened recently. Reportedly,
he had been subjected to “hypnosis sessions” at Khalifa medical hospital, while the aim of
and methodology used in such sessions is unclear.
b.
Analysis of violations
i.
Category I
13.
The source argues that on 18 August 2018, Mr. Al-Shamsi was arrested without a
warrant while returning from the industrial area of Abu Dhabi to his residence in Al-Ain
district. He was not provided with any reason for his arrest and there do not appear to be
any circumstances that would give reasonable cause to arrest him in flagrante delicto. As
such, his detention was not grounded in law, in violation of Mr. Al-Shamsi’s rights under
articles 3 and 9 of the Universal Declaration of Human Rights, principles 2, 4 and 10 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment and article 14 (1) of the Arab Charter on Human Rights.
14.
According to the source, during the first six months of his detention, Mr. Al-Shamsi
was forcibly disappeared and was allegedly not informed of the charges against him, in
violation of his right to be promptly informed of the reasons for the arrest and the charges
being brought against him, under article 99 of Federal Law No. (35) of 1992 concerning the
Criminal Procedural Law (“Criminal Procedural Law”), guideline 17 of the Basic
Principles and Guidelines on Remedies and Procedures on the Right of Persons Deprived of
Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 10 of
the Body of Principles and article 14 (3) of the Arab Charter on Human Rights. It remains
unclear as to whether Mr. Al-Shamsi has been formally charged yet.
15.
The source recalls that enforced disappearance is a prima facie form of arbitrary
detention. The period during which Mr. Al-Shamsi was forcibly detained therefore
constituted a violation of his right to be considered a person before the law, in
contravention of article 6 of the Universal Declaration of Human Rights and article 22 of
the Arab Charter on Human Rights. The enforced disappearance of Mr. Al-Shamsi further
violates articles 26 and 28 of the Constitution of the United Arab Emirates, which enshrine
the right to personal liberty and the presumption of innocence.
16.
The source alleges that in placing him outside of the protection of the law, the
enforced disappearance of Mr. Al-Shamsi deprived him of his legal safeguards as a
detainee, including the right to habeas corpus and the right to be promptly before a judicial
authority, in violation of Mr. Al-Shamsi’s rights under articles 8, 9 and 10 of the Universal
Declaration of Human Rights, articles 14 (6) and 22 of the Arab Charter on Human Rights,
principles 11, 32 and 37 of the Body of Principles and principles 8 and 10 of the Basic
Principles and Guidelines. In addition, the enforced disappearance of Mr. Al-Shamsi
deprived him of his right to submit a grievance in relation to the extension of his detention
beyond the lawful period of seven days, renewable for another period not exceeding 14
days, under article 110 of the Criminal Procedural Law.
17.
In the light of the above, the source argues that Mr. Al-Shamsi’s detention is
arbitrary under category I.
ii.
Category III
18.
The source further submits that Mr. Al-Shamsi’s detention is arbitrary owing to the
severe violations of his right to a fair trial.
19.
The source argues that despite his prolonged detention, Mr. Al-Shamsi remains
unable to meet with legal counsel, has not been provided with access to his case file, and
believes that he has not been formally informed of the charges against him. The source
considers that this is in violation of Mr. Al-Shamsi’s right to have the attendance of legal
counsel during the investigatory stage of proceedings under article 100 of the Criminal
Procedural Law, as well as violating the essence of the right to legal assistance, preparation
for defence and equality of arms as guaranteed under articles 10 and 11 (1) of the Universal
A/HRC/WGAD/2020/34
4
Declaration of Human Rights, article 16 of the Arab Charter on Human Rights and
principle 9 of the Basic Principles and Guidelines. Moreover, Mr. Al-Shamsi’s initial
enforced disappearance inherently negated the essence of the right to legal assistance,
preparation for defence and free communication with legal counsel under article 11 (1) of
the Universal Declaration of Human Rights.
20.
According to the source, notwithstanding efforts made by the Embassy of Oman,
Mr. Al-Shamsi was denied his right to have access to consular assistance under article 36
(2) of the Vienna Convention on Consular Relations and principle 16 (2) of the Body of
Principles.
21.
The source alleges that Mr. Al-Shamsi was forcibly disappeared and held in solitary
confinement for the first six months of his detention. In addition, Mr. Al-Shamsi was
subjected to other forms of torture, including beatings, harassment, threats, electrocution,
nail removal, starvation and prolonged sleep deprivation. The use of torture contravenes the
absolute prohibition of torture as enshrined in articles 2 and 16 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 5 of the
Universal Declaration of Human Rights and principle 6 of the Body of Principles. It also
violates article 8 of the Arab Charter on Human Rights and article 26 of the Constitution.
22.
The source submits that the torture occurred as a means of forcing Mr. Al-Shamsi to
confess to working with his uncle for the benefit of Qatar and in opposition to the United
Arab Emirates. At the first hearing of the trial of Mr. Al-Shamsi’s uncle, the prosecutor
advised Mr. Al-Shamsi’s uncle that Mr. Al-Shamsi’s confessions incriminated himself and
his uncle. There is therefore a high risk that the confessions extracted from Mr. Al-Shamsi
under torture will be invoked as evidence in the court proceedings of Mr. Al-Shamsi and
his uncle, in violation of article 15 of the Convention against Torture and guideline 12 of
the Basic Principles and Guidelines.
23.
The source argues that moreover, enforced disappearance enables torture and
constitutes a form of torture per se, in relation to both the disappeared persons and to their
relatives.1 As such, by forcibly disappearing Mr. Al-Shamsi, the authorities of the United
Arab Emirates violated their obligations under the Convention against Torture.
Response from the Government
24.
On 9 December 2019, the Working Group transmitted the allegations made by the
source to the Government through its regular communications procedure. The Working
Group requested the Government to provide, by 7 February 2020, detailed information
about the situation of Mr. Al-Shamsi and any comments on the source's allegations.
Moreover, the Working Group called upon the Government to ensure Mr. Al-Shamsi’s
physical and mental integrity.
25.
In its response of 28 January 2020, the Government states that Mr. Al-Shamsi was
arrested in accordance with the rules and legal principles followed in the United Arab
Emirates, after having been informed of the reason for his arrest and presented with the
arrest and search warrants, which he reviewed in detail.
26.
According to the Government, on 15 November 2018, Mr. Al-Shamsi was referred
to the competent prosecution, and on 13 January 2020, he was referred to the competent
court, for committing criminal acts in violation of the laws in force.
27.
The Government claims that Mr. Al-Shamsi was not arbitrarily detained, held in
solitary confinement, tortured, physically abused or deprived of his personal rights. Instead,
he was housed with other prisoners in one of the qualified penal establishments that met all
the required standards to ensure the safety of prisoners in terms of food, environment, air
conditioning and ventilation.
1 The source refers to Hernández Colmenarez and Guerrero Sánchez v. Bolivarian Republic of
Venezuela (CAT/C/54/D/456/2011).
A/HRC/WGAD/2020/34
5
28.
The Government adds that Mr. Al-Shamsi has received the necessary medical
attention with periodic treatment by doctors, who provide medication and perform other
procedures.
29.
Lastly, the Government maintains that visits and telephone calls, which are allowed
and are regulated by the procedures followed by the penitentiary institution, have been
made by Mr. Al-Shamsi’s relatives.
Further comments from the source
30.
In its response, the source states that the evidence supplied by the Government, or
lack thereof, supports the source’s account of events concerning Mr. Al-Shamsi’s detention.
31.
Concerning the allegation of arbitrary arrest, the source points out that the
Government provided no supporting evidence, such as a copy of the arrest warrant, to
corroborate its claim that Mr. Al-Shamsi was informed of the reason for his arrest and
presented with arrest and search warrants.
32.
The source also notes that the Government has not directly addressed the allegation
that Mr. Al-Shamsi was subjected to six months of enforced disappearance, which in and of
itself constitutes a form of arbitrary detention.
33.
With respect to the Government’s claim that Mr. Al-Shamsi was not held in solitary
confinement, the source emphasizes that the records provided by the Government
demonstrates that he was not in contact with the outside world for five months, since they
show that he did not make a phone call until 20 February 2019, after his transfer to an
official detention facility, and did not receive visits until 31 January 2019, even though his
arrest was on 18 August 2018.
34.
Furthermore, the source maintains that the Government has failed to provide
evidence to substantiate its claims that Mr. Al-Shamsi was not held in solitary confinement.
35.
According to the source, the Government has confirmed in its response that Mr. Al-
Shamsi was arrested on 18 August 2018 but was not brought before the prosecution until 15
November 2018 and was not referred to the court until 13 January 2020. The Government
provides no information as to the charges faced by Mr. Al-Shamsi and no reasons to justify
his pretrial detention for nearly one and a half years.
36.
In addition, the source notes that the Government’s timeline of events indicates a
clear violation of Mr. Al-Shamsi’s right to habeas corpus and the right to be brought
promptly before a judicial authority. He was clearly deprived of his right to submit a
grievance in relation to the extension of his detention beyond the lawful period of 7 days,
renewable for another period not exceeding 14 days, under article 110 of the Criminal
Procedural Law.
37.
The source further indicates that the Government did not address the allegation that
Mr. Al-Shamsi had been denied access to legal counsel and to consular assistance in
violation of article 100 of Criminal Procedural Code, articles 10 and 11 (1) of the Universal
Declaration of Human Rights, article 16 of the Arab Charter on Human Rights, principle 9
of the Basic Principles and Guidelines, article 36 (2) of the Vienna Convention on Consular
Relations and principle 16 (2) of the Body of Principles.
38.
The source adds the update that, following Mr. Al-Shamsi’s referral to the court on
13 January 2020, his first hearing took place on 5 February 2020. However, his lawyer has
not yet been granted access to his case file, severely undermining his right to equality of
arms.
39.
With respect to the allegation of torture and ill-treatment, the source maintains that
the Government has failed to substantiate its position with evidence. The source states that
between the Working Group’s communication sent to the Government on 9 December 2019
and the latter’s response on 28 January 2020, Mr. Al-Shamsi was tortured into making false
confessions on video on 7 January 2020. He has also been harassed by the authorities, who
threatened to arrest his mother and siblings if he did not make a confession.
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6
40.
Lastly, the source asserts that the Government continues to deny access to Mr. Al-
Shamsi’s medical records and that his health remains in poor condition as he has not
received proper treatment.
Discussion
41.
The Working Group thanks the source and the Government for their submissions in
relation to Mr. Al-Shamsi’s deprivation of liberty.
42.
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. Furthermore,
mere assertions by the Government that lawful procedures have been followed are not
sufficient to rebut the source’s allegations (A/HRC/19/57, para. 68).
Category I
43.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without any legal basis.
44.
The source submits, and the Government has failed to substantiate its claim to the
contrary, that Mr. Al-Shamsi was not presented with an arrest warrant or informed of the
reasons for his arrest by the State Security Directorate at the time of arrest on 18 August
2018.
45.
As the Working Group has stated, in order for a deprivation of liberty to have a legal
basis, it is not sufficient for there to be a law authorizing the arrest. The authorities must
invoke that legal basis and apply it to the circumstances of the case through an arrest
warrant, which was not done in the present case.2
46.
International law includes the right to be presented with an arrest warrant to ensure
the exercise of effective control by a competent, independent and impartial judicial
authority, which is procedurally inherent in the right to liberty and security and the
prohibition of arbitrary deprivation of liberty under articles 3 and 9 of the Universal
Declaration of Human Rights and principles 2, 4 and 10 of the Body of Principles.3 The
Working Group has been presented with no valid grounds, such as arrest in flagrante
delicto, to justify an exception to this principle in the present case.
47.
The Working Group also finds that, in order to invoke a legal basis for deprivation
of liberty, the authorities should have informed Mr. Al-Shamsi of the reasons for his arrest,
at the time of arrest, and informed him of the charges against him promptly.4 Their failure
to do so violates article 9 of the Universal Declaration of Human Rights and principle 10 of
the Body of Principles, and renders his arrest devoid of any legal basis.5
48.
The source further maintains, and the Government has not substantiated its claim to
the contrary, that Mr. Al-Shamsi was subjected to enforced disappearance and
incommunicado detention for six months from 18 August 2018.
49.
The Working Group recalls that enforced disappearance constitutes a particularly
aggravated form of arbitrary detention as it places the person outside the protection of the
2 For example, opinions No. 10/2018, para. 45–46; No. 36/2018, para. 40; No. 46/2018, para. 48; No. 9/2019,
para. 29; No. 32/2019, para. 29; No. 33/2019, para. 48; No. 44/2019, para. 52; No. 45/2019, para. 51; and No.
46/2019, para. 51.
3 The Working Group has maintained from its early years that the practice of arresting persons without a warrant
renders their detention arbitrary. For example, opinions No. 3/2018, para. 43; No. 10/2018, para. 46; No.
26/2018, para. 54; No. 30/2018, para. 39; No. 38/2018, para. 63; No. 47/2018, para. 56; No. 51/2018, para. 80;
No. 63/2018, para. 27; No. 68/2018, para. 39; and No. 82/2018, para. 29. See also article 14 (1) of the Arab
Charter on Human Rights.
4 For example, opinion No. 10/2015, para. 34. See also opinions No. 32/2019, para. 29; No. 33/2019, para. 48; No.
44/2019, para. 52; No. 45/2019, para. 51; and No. 46/2019, para. 51.
5 See also article 14 (1) and (3) of the Arab Charter on Human Rights.
A/HRC/WGAD/2020/34
7
law, in violation of article 6 of the Universal Declaration of Human Rights.6 The Working
Group therefore refers the present case to the Working Group on Enforced or Involuntary
Disappearances.
50.
The Working Group and other experts also stated, in the joint study on global
practices in relation to secret detention in the context of countering terrorism
(A/HRC/13/42), that no jurisdiction should allow for individuals to be deprived of their
liberty in secret for potentially indefinite periods, held outside the reach of the law, without
the possibility of resorting to legal procedures, including habeas corpus (A/HRC/16/47 and
Corr.1, para. 54). In accordance with Human Rights Council resolution 37/3 (paras. 8, 9
and 16), the Working Group stresses that no one is to be held in secret detention, and urges
the Government of the United Arab Emirates to close down promptly all secret detention
facilities.
51.
The Working Group observes that thereupon Mr. Al-Shamsi was not brought
promptly before a judge, within 48 hours of the arrest barring absolutely exceptional
circumstances, as per the international standard set out in the Working Group’s
jurisprudence.7 Furthermore, his pretrial detention, which should be the exception rather
than the rule, lacked a legal basis as it was not based on an individualized determination
that it was reasonable and necessary taking into account all the circumstances, for such
purposes specified in law as to prevent flight, interference with evidence or the recurrence
of crime, accompanied by consideration of alternatives, such as bail, electronic bracelets or
other conditions, rendering detention unnecessary in the particular case. 8 Therefore, the
State has violated article 9 of the Universal Declaration of Human Rights and principles 11,
37 and 38 of the Body of Principles.9
52.
The Working Group further observes that Mr. Al-Shamsi was not afforded the right
to take proceedings before a court so that it might decide without delay on the lawfulness of
his detention in accordance with articles 3, 8 and 9 of the Universal Declaration of Human
Rights and principles 11, 32 and 37 of the Body of Principles.10 Under the Basic Principles
and Guidelines, 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). In
addition, the Working Group notes that judicial oversight of the deprivation of liberty is a
fundamental safeguard of personal liberty and is essential in ensuring that detention has a
legal basis.11
53.
For these reasons, the Working Group considers that Mr. Al-Shamsi’s deprivation of
liberty lacks a legal basis and is thus arbitrary, falling under category I.
Category III
54.
Turning to category III, the Working Group notes that Mr. Al-Shamsi does not
appear to have had access to legal counsel of his choice for 20 months, since the time of his
arrest by the State Security Directorate on 18 August 2018.
55.
In the Working Group’s view, the authorities failed to respect Mr. Al-Shamsi’s right
to legal assistance at all times, which is inherent in the right to liberty and security of
person and the right to a fair and public hearing by a competent, independent and impartial
6 Opinions No. 82/2018, para. 28; No. 18/2019, para. 33; No. 22/2019, para. 67; No. 26/2019, para. 88; No.
28/2019, para. 61; No. 29/2019, para. 54; No. 36/2019, para. 35; No. 41/2019, para. 32; No. 42/2019, para. 48;
No. 51/2019, para. 58; and No. 56/2019, para. 79. See also article 22 of the Arab Charter on Human Rights.
7 Opinions No. 11/2019, para. 63; No. 20/2019, para. 66; No. 26/2019, para. 89; No. 30/2019, para. 30;
No. 36/2019, para. 36; No. 42/2019, para. 49; No. 51/2019, para. 59; No. 56/2019, para. 80; No.
76/2019, para. 38; and No. 82/2019, para. 76.
8 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para. 38.
See also A/HRC/19/57, paras. 48–58.
9 See also articles 14 (1) and (5) and 23 of the Arab Charter on Human Rights.
10 See also articles 12, 14 (1), (5) and (6) and 23 of the Arab Charter on Human Rights.
11 Opinions No. 35/2018, para. 27; No. 83/2018, para. 47; No. 32/2019, para. 30; No. 33/2019, para. 50;
No. 44/2019, para. 54; No. 45/2019, para. 53; No. 59/2019, para. 51; and No. 65/2019, para. 64.
A/HRC/WGAD/2020/34
8
tribunal established by law, in accordance with articles 3, 9, 10 and 11 (1) of the Universal
Declaration of Human Rights. The Working Group considers that this violation
substantially undermined his capacity to defend himself in any subsequent judicial
proceedings. As the Working Group stated in the Basic Principles, persons deprived of their
liberty have the right to legal assistance by counsel of their choice, at any time during their
detention, including immediately after the moment of apprehension, and must be promptly
informed of this right upon apprehension (principle 9); and access to legal counsel should
not be unlawfully or unreasonably restricted (guideline 8). The Working Group therefore
finds a serious violation of articles 10 and 11 (1) of the Universal Declaration of Human
Rights and principles 15, 17 and 18 of the Body of Principles.12
56.
The Working Group also notes the Government’s failure to observe Mr. Al-
Shamsi’s rights, including the right to be informed of his right to consular assistance under
article 36 (1) (b) of the Vienna Convention on Consular Relations. This and other violations
of the rights guaranteed under article 36 (1) (a), (b) and (c) of the Vienna Convention on
Consular Relations constitute grave violations of the rights to due process and to a fair trial
under articles 10 and 11 (1) of the Universal Declaration of Human Rights and principle 16
(2) of the Body of Principles. In fact, Mr. Al-Shamsi’s parents notified the Embassy of
Oman the day after his disappearance and the Omani consular officials sought to visit and
have access to him, only to be turned away by the Government. In accordance with
paragraph 33 (a) of its methods of work, the Working Group refers the present case to the
Special Rapporteur on the human rights of migrants, for appropriate action.
57.
The Working Group further notes the denial of Mr. Al-Shamsi’s due process right to
be visited by and to correspond with his family and to be given adequate opportunity to
communicate with the outside world, subject to reasonable conditions and restrictions as
specified by law or lawful regulations, in accordance with principles 15 and 19 of the Body
of Principles and rules 43 (3) and 58 of the United Nations Standard Minimum Rules for
the Treatment of Prisoners (the Nelson Mandela Rules).13
58.
In the Working Group’s view, Mr. Al-Shamsi’s ongoing pretrial detention in prison,
for 20 months to date, has undermined the presumption of innocence guaranteed under
article 11 (1) of the Universal Declaration of Human Rights and principle 36 (1) of the
Body of Principles.14 Furthermore, there can be no justification for his prolonged pretrial
detention for 20 months with no prospect for trial, during which time he has remained
deprived of liberty, a manifest violation of the right to be tried without undue delay,
guaranteed under articles 10 and 11 (1) of the Universal Declaration of Human Rights.15 He
has yet to be informed of the charges against him.16
59.
The Working Group also expresses its grave concern at the prima facie allegation of
torture during Mr. Al-Shamsi’s pretrial detention, including beatings, electrocution, nail
removal, starvation and prolonged sleep deprivation. The medical examination dated 21
January 2020 does not reliably rebut the allegations of torture over the previous 16 months
to extract confessions from Mr. Al-Shamsi incriminating himself and his uncle. The
Government also offered no explanation to rebut the allegation of threats against his family.
60.
With respect to Mr. Al-Shamsi’s six-month solitary confinement, the Working
Group recalls that the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment has deemed that prolonged solitary confinement, meaning solitary
confinement in excess of 15 days, at which point some of the harmful psychological effects
of isolation can become irreversible (A/63/175, para. 56, and A/66/268, para. 61), 17 or
prolonged incommunicado detention in a secret place (A/56/156, para. 14) may amount to
torture as described in article 1 of the Convention against Torture.
12 See also articles 12, 13 (1) and 16 (2) and (3) of the Arab Charter on Human Rights.
13 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74–75; and No. 45/2019, para. 76.
14 See also article 16 of the Arab Charter on Human Rights.
15 See also article 13 (1) of the Arab Charter on Human Rights.
16 See also articles 14 (3) and 16 (1) of the Arab Charter on Human Rights.
17 Likewise, under rule 44 of the Nelson Mandela Rules, prolonged solitary confinement refers to
solitary confinement for a time period in excess of 15 consecutive days.
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9
61.
The Working Group observes that the competent authorities not only failed to
conduct a prompt and impartial investigation into the allegations of torture, but also failed
to take action to prevent the statements extracted under torture from being used during the
proceedings against Mr. Al-Shamsi and his uncle. In accordance with paragraph 33 (a) of
its methods of work, the Working Group refers the present case to the Special Rapporteur
on the independence of judges and lawyers, for appropriate action.
62.
In this respect, the Working Group recalls that, after her official visit to the United
Arab Emirates in 2014, the Special Rapporteur on the independence of judges and lawyers
reported that more than 200 complaints relating to torture and/or ill-treatment had been
presented before judges and/or prosecutors over the previous few years, but that those
complaints had not been taken into account in judicial proceedings and no independent
investigation into them had allegedly taken place (A/HRC/29/26/Add.2, para. 53).18
63.
The Working Group finds that the source presented credible allegations that the
absolute prohibition of torture, enshrined in article 5 of the Universal Declaration of Human
Rights and articles 2 (1) and 16 (1) of the Convention against Torture,19 has been violated.20
The Government’s failure to take remedial measures also violates articles 12, 13 and 14 (1)
of the Convention against Torture, 21 and principle 33 of the Body of Principles.
Accordingly, the Working Group refers the present case to the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment, for further
consideration.
64.
The Working Group further recalls that torture undermines the minimum guarantees
necessary for one’s defence, especially in the light of the right not to be compelled to testify
against oneself or to confess guilt, under article 11 (1) of the Universal Declaration of
Human Rights. The use of a confession extracted through torture is also contrary to article
15 of the Convention against Torture and principle 21 of the Body of Principles.22
65.
The Working Group expresses its grave concern at Mr. Al-Shamsi’s worsening
physical and psychological condition, including a malignant tumour in his remaining
kidney. Accordingly, the Working Group refers the present case to the Special Rapporteur
on the right of everyone to the enjoyment of the highest attainable standard of physical and
mental health and the Special Rapporteur on the rights of persons with disabilities, for
further consideration.
66.
Given 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 Mr. Al-Shamsi’s deprivation of
liberty an arbitrary character, falling within category III.
Additional observations
67.
The Working Group wishes to comment on other serious allegations made in the
present case, namely the harassment suffered by Mr. Al-Shamsi’s family in connection with
his deprivation of liberty. In September 2018, while Mr. Al-Shamsi was still being
subjected to enforced disappearance at a secret site, the security forces raided his parents’
home and confiscated an old mobile phone and the student’s laptop. As the Government did
not address these allegations, the Working Group accepts them as established as part of the
source’s prima facie case. Under no circumstances is it ever acceptable to subject family
members of a detained person to such harassment.
68.
In its 29-year history, the Working Group has found the United Arab Emirates to be
in violation of its international human rights obligations in at least 26 cases.23 The Working
18 Opinions No. 21/2017, para. 48, and No. 76/2017, para. 76.
19 See also article 8 (1) of the Arab Charter on Human Rights.
20 See also principles 1 and 6 of the Body of Principles and rule 1 of the Nelson Mandela Rules. The
prolonged solitary confinement in particular violates rules 43–45 of the Nelson Mandela Rules.
21 See also article 8 (2) of the Arab Charter on Human Rights.
22 See opinions No. 48/2016, No. 3/2017, No. 6/2017, No. 29/2017 and No. 39/2018.
23 See, for example, opinions No. 47/2017, No. 58/2017, No. 76/2017, No. 30/2018, No. 28/2019 and
No. 55/2019.
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10
Group is concerned that this indicates a systemic problem with arbitrary detention in the
United Arab Emirates, which amounts to a serious violation of international law. 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
Disposition
69.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Abdullah Awad Salim al-Shamsi, being in
contravention of articles 3, 6, 8, 9, 10 and 11 (1) of the Universal Declaration of
Human Rights, is arbitrary and falls within categories I and III.
70.
The Working Group requests the Government of the United Arab Emirates to take
the steps necessary to remedy the situation of Mr. Al-Shamsi without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights. The Working Group encourages the Government to accede
to the International Covenant on Civil and Political Rights.
71.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Al-Shamsi immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law. In the current context of the global coronavirus disease (COVID-19)
pandemic and the threat that it poses in places of detention, the Working Group calls upon
the Government to take urgent action to ensure the immediate release of Mr. Al-Shamsi.
72.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Al-Shamsi and to take appropriate measures against those responsible for the violation of
his rights.
73.
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, the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health, the Special
Rapporteur on the rights of persons with disabilities, the Special Rapporteur on the
independence of judges and lawyers, the Special Rapporteur on the human rights of
migrants and the Working Group on Enforced or Involuntary Disappearances, for
appropriate action.
74.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
75.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Al-Shamsi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Al-
Shamsi;
(c)
Whether an investigation has been conducted into the violation of Mr. Al-
Shamsi’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 the United Arab Emirates with its international
obligations in line with the present opinion;
24 A/HRC/13/42, para. 30. See also, for example, opinions No. 68/2018, para. 60; No. 73/2018, para. 69;
No. 82/2018, para. 53; No. 83/2018, para. 68; and No. 87/2018, para. 80.
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(e)
Whether any other action has been taken to implement the present opinion.
76.
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.
77.
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.
78.
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.25
[Adopted on 1 May 2020]
25 Human Rights Council resolution 42/22, paras. 3 and 7.