A/HRC/WGAD/2020/87

GE.21-02923(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-ninth session, 23–27 November 2020

Opinion No. 87/2020 concerning Ali Mahdi Abdulhusain Mohamad

Alaiwi, Hasan Asad Jasim Jasim Nesaif, Habib Hasan Habib Yusuf,

Ali Ahmed Ali Ahmed Fakhrawi, Mohamed Ahmed Ali Ahmed

Fakhrawi and Nooh Abdulla Hasan Ahmed Hasan al-Amroom

(Bahrain)

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 7 July 2020 the Working

Group transmitted to the Government of Bahrain a communication concerning Ali Mahdi

Abdulhusain Mohamad Alaiwi, Hasan Asad Jasim Jasim Nesaif, Habib Hasan Habib Yusuf,

Ali Ahmed Ali Ahmed Fakhrawi, Mohamed Ahmed Ali Ahmed Fakhrawi and Nooh Abdulla

Hasan Ahmed Hasan al-Amroom. The Government replied to the communication on 6

September 2020. 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,

United Nations

A/HRC/WGAD/2020/87

General Assembly

Distr.: General

3 March 2021

Original: English

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2

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).

Submissions

Communication from the source

Arrest, detention and trial proceedings

4.

Ali Mahdi Abdulhusain Mohamad Alaiwi is a national of Bahrain, born in 1996.

5.

The source reports that on 22 May 2013, police officers, including riot police,

accompanied by masked officers in civilian clothing, reportedly from the Special Security

Force Command, a paramilitary unit of the Ministry of the Interior that is responsible for riot

control and crowd control, broke into the Alaiwi household while the family was sleeping to

arrest Mr. Alaiwi, then 17 years old, without a warrant or a stated reason for the arrest. The

officers who conducted the arrest said they would take Mr. Alaiwi for interrogation and

would return him if no charges were laid against him. After arresting Mr. Alaiwi, the

authorities took him to the premises of the criminal investigation directorate, where they

detained and interrogated him for several days regarding allegations of arson against him,

after which they transferred him to the Dry Dock Detention Centre. While detained, Mr.

Alaiwi was charged with illegal assembly, burning tyres and assaulting a security officer, in

addition to the charge of arson.

6.

Due to the family’s financial circumstances, Mr. Alaiwi had to rely on a court-

appointed lawyer when he went to trial. However, the lawyer did not communicate with him

or his family, and did not even meet with Mr. Alaiwi prior to his trial.

7.

On 1 April 2014, the court convicted Mr. Alaiwi on all four charges and sentenced

him to 10 years’ imprisonment. The next day, the authorities transferred him from Dry Dock

Detention Centre to Jau Reform and Rehabilitation Centre (Jau prison), where he was first

placed in Building 3 and then relocated to Building 6, which is used to hold minors.

8.

Mr. Alaiwi appealed the first two of the charges against him, but on 28 September

2014, a court of appeal upheld the trial court’s verdict.

9.

In January or February 2015, a prison officer reportedly kicked Mr. Alaiwi in the

genitals “for no reason”, after which Mr. Alaiwi fell ill and started expressing signs of

psychological exhaustion, becoming unusually short-tempered, quarrelsome and prone to

yelling for no reason. He also began to experience hallucinations and abnormal impulses,

such as shaving his eyebrows and plucking his eyelashes.

10.

Following a riot in Jau prison in March 2015, the authorities transferred Mr. Alaiwi

to New Dry Dock, a section of Jau prison for individuals under the age of 21, and held him

there for almost two years. Upon turning 21, Mr. Alaiwi was returned to the general prison

population, and placed in Building 4 for the next two years.

11.

As Mr. Alaiwi was arrested without a warrant, not informed of the charges against

him for days after his arrest, not allowed access to his lawyer, and denied permission to

present evidence and challenge evidence presented against him, the source submits that he

was subjected to an unfair trial, in violation of article 19 (a) of the Constitution, read in

conjunction with article 357 of the Criminal Code and article 61 of the Code of Criminal

Procedure, as well as international law. The source further submits that the case constitutes

deprivation of liberty falling under category III, in violation of the international obligations

of Bahrain under articles 9 and 14 of the Covenant and articles 9 and 11 of the Universal

Declaration of Human Rights.

12.

Hasan Asad Jasim Jasim Nesaif is a national of Bahrain, born in 1995.

13.

In 2011, the Bahraini authorities charged Mr. Nesaif, then a minor, with illegal

assembly, arson and manufacturing explosives. As a result, Mr. Nesaif spent the following

four years in hiding; 11 summonses were sent and, ultimately, a sentence of 13 years’

imprisonment was issued against him in absentia. During those years, the authorities

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regularly raided his family’s home, sometimes as frequently as twice a month. In late 2011,

officers came close to arresting Mr. Nesaif, and in his effort to escape he fell from the second

floor of a building, which caused him to suffer spinal fractures. Mr. Nesaif made his way to

Ibn Al-Nafees Hospital, where he stayed for two days and was prescribed a medical back

brace for his injuries. As the authorities were still looking for him, however, Mr. Nesaif was

unable to receive a brace, and has not received one from the authorities since his arrest.

14.

On 20 May 2015, officers in civilian clothing arrested Mr. Nesaif without a warrant,

following a raid on his house. When he tried to escape, the police shot and severely beat him.

After arresting Mr. Nesaif, the officers transferred him to a police station, where they

allegedly beat him for approximately an hour before transferring him to the premises of the

criminal investigation directorate.

15.

On 21 May 2015, officers from the criminal investigation directorate raided Mr.

Nesaif’s family home again, looking for evidence against him, but did not find anything.

16.

After the authorities arrested Mr. Nesaif, he spent two days in detention being

interrogated at the criminal investigation directorate without a lawyer present before the

officers transferred him to the Office of Public Prosecution on 23 May 2015. The authorities

then returned Mr. Nesaif to the criminal investigation directorate and, on 25 May 2015, they

transferred him to Jau prison for one day, after which they relocated him to New Dry Dock.

17.

According to the source, while the authorities were interrogating Mr. Nesaif at the

premises of the criminal investigation directorate and Jau prison, they reportedly tortured him

in order to coerce him into making confessions, which he ultimately made.

18.

The charges against Mr. Nesaif ultimately included illegal assembly and rioting,

assaulting a security officer, endangering people’s lives and their safety, participating in the

destruction of property during an illegal assembly, manufacturing and possessing flammable

and explosive packaging, committing a breach of security, committing arson, and using force

and violence against a public official.

19.

On 31 May 2015, the court convicted Mr. Nesaif of arson and sentenced him to five

years in prison, which was reduced on appeal to three years on 26 May 2016. Cumulatively,

the prison sentences issued against Mr. Nesaif amounted to 31 years and one month in prison.

When Mr. Nesaif appealed this verdict, the Court of Cassation upheld all of the sentences.

20.

On 10 October 2015, Mr. Nesaif received his first family visit at New Dry Dock. On

22 June 2016, Mr. Nesaif reached the age of 21 and the prison administration transferred him

to the general population in Jau prison, where he remains.

21.

Mr. Nesaif was arrested and detained without a warrant, was not allowed access to his

lawyer, was not promptly brought before a judge during his detention and was tortured to

produce a confession, thus the source submits that he was subjected to an unfair trial, in

violation of article 19 (a) and (b) of the Constitution as well as international law. The source

further submits that the case constitutes deprivation of liberty falling under category III, in

violation of the international obligations of Bahrain under articles 9 and 14 of the Covenant

and articles 9 and 11 of the Universal Declaration of Human Rights, as well as under the

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

Punishment.

22.

Habib Hasan Habib Yusuf is a national of Bahrain, born in 1979.

23.

On 6 June 2017, officers in civilian clothing arrested Mr. Yusuf without a warrant or

a reason for the arrest while he was out buying groceries for his family in West Eker village.

It was later discovered that Mr. Yusuf had been implicated by a friend (a co-defendant in the

same case) and had been wanted by the police and under their surveillance at the time of his

arrest.

24.

On the day of his arrest, Mr. Yusuf was able to inform a relative, by telephone, that

he was being held at the premises of the criminal investigation directorate, after which the

authorities held him incommunicado and interrogated him for 25 days without a lawyer

present.

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25.

The directorate officers initially charged Mr. Yusuf with concealing information about

fugitives, but brought three more charges against him during the interrogation period:

establishing a terrorist cell, buying and selling weapons and possessing explosives.

26.

The officers reportedly tortured and insulted Mr. Yusuf during his interrogation in a

room called “the hot line” in the criminal investigation directorate building. The torture

consisted of beatings, including on “sensitive areas”, and being forced to stand for long

periods of time – up to several days. The physical torture he endured resulted in weight loss.

The officers also threatened Mr. Yusuf and told him they would avoid releasing him at all

costs in retaliation for his fugitive relatives, who were outside of Bahrain. They told him that

whenever he was sentenced for a crime, they would charge him again with new counts so his

sentences would accumulate.

27.

Due to the torture, Mr. Yusuf falsely confessed to the charges, but retracted the

confession when he was brought before a judge. Mr. Yusuf’s family requested information

about his health while he was in the custody of the criminal investigation directorate but did

not receive any news.

28.

The Office of Public Prosecution reportedly issued an order for Mr. Yusuf to be

released 14 days after his arrest, but the criminal investigation directorate officers refused to

do so. An officer told Mr. Yusuf that he would be put in prison for life. Immediately following

this, the directorate charged Mr. Yusuf with three additional crimes.

29.

After the interrogation period, the authorities transferred Mr. Yusuf to the Dry Dock

Detention Centre for pretrial detention. The court did not grant Mr. Yusuf access to his lawyer,

permission to present evidence or permission to challenge evidence presented against him,

and it admitted his coerced confession as evidence against him during trial, rejecting his

retraction.

30.

On 19 February 2019, the court sentenced Mr. Yusuf to 25 years in prison and

denationalized him. He is currently being held in Jau prison, but his nationality was reinstated

on 20 April 2019 by royal order.

31.

Mr. Yusuf was arrested and detained without a warrant, denied access to his lawyer,

and not promptly brought before a judge, and his confession made under torture was used as

evidence against him at trial. The source thus submits that he was subjected to an unfair trial.

The actions of Bahrain violate article 19 (a) and (b) of the Constitution as well as the

obligations of Bahrain under articles 9 and 14 of the Covenant, under the Convention against

Torture and under articles 9 and 11 of the Universal Declaration of Human Rights, and

therefore constitute deprivation of liberty falling under categories I and III.

32.

Ali Ahmed Ali Ahmed Fakhrawi is a national of Bahrain, born in 1983.

33.

On 18 September 2015, officers in civilian clothing arrested Mr. A. Fakhrawi at a

relative’s house without a warrant. Mr. A. Fakhrawi is the twin brother of Mohamed Ahmed

Ali Ahmed Fakhrawi (see below).

34.

Following his arrest, officers transported Mr. A. Fakhrawi to the Roundabout 17

Police Station, where they held him for three months, during which criminal investigation

directorate officers denied him access to his lawyer while interrogating him.

35.

At the station, the officers reportedly tortured Mr. A. Fakhrawi, including by

handcuffing him continuously for 72 days, detaining him in a cold room, making threats

against his family and depriving him of sleep. The authorities tortured Mr. A. Fakhrawi in

order to coerce a confession, which he ultimately made, and then used his forced confession

as evidence against him in court.

36.

On 6 June 2016, the Government charged Mr. A. Fakhrawi with terrorism-related

crimes and, on 30 October 2017, the court sentenced him to life imprisonment, after which

the authorities transferred him to Jau prison.

37.

The court of appeal upheld Mr. A. Fakhrawi’s sentence on 7 March 2018 and the

Court of Cassation further upheld it on 6 May 2019. Mr. A. Fakhrawi has now exhausted all

domestic remedies, and his sentence is final.

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38.

Mr. A. Fakhrawi remains at Jau prison, where the authorities arbitrarily transferred

him to an “isolation room” in section 12 on 29 April 2019. He can spend only 30 minutes per

day outside of his cell while detained in an isolation room, and has limited access to water

and no access to goods at the prison canteen or mailed to him by his family. Mr. A. Fakhrawi

is also the only Arabic speaker in section 12, further exacerbating his isolation.

39.

Mr. A. Fakhrawi was arrested and detained without a warrant, denied access to his

lawyer, not promptly brought before a judge, and subjected to torture, and had a confession

made while under torture used as evidence against him at trial. The source thus submits that

he was subjected to an unfair trial. The actions of Bahrain violate article 19 (a) and (b) of the

Constitution as well as the obligations of Bahrain under articles 9 and 14 of the Covenant,

under the Convention against Torture and under articles 9 and 11 of the Universal Declaration

of Human Rights, and therefore constitute deprivation of liberty falling under categories I

and III.

40.

Mohamed Ahmed Ali Ahmed Fakhrawi is a national of Bahrain, born in 1983.

41.

On 18 September 2015, officers in civilian clothing arrested Mr. M. Fakhrawi at his

home in Manama without a warrant. Mr. M. Fakhrawi is the twin brother of Mr. A. Fakhrawi

(see above).

42.

Following the arrest, criminal investigation directorate officers reportedly disappeared

Mr. M. Fakhrawi for three months, during which time they denied him access to his lawyer

while interrogating him at the Roundabout 17 Police Station.

43.

At the station, the officers subjected Mr. M. Fakhrawi to various forms of torture in

order to coerce a confession, which he ultimately made, and then used his forced confession

as evidence against him in court.

44.

On 6 June 2016, Mr. M. Fakhrawi was charged with two different crimes, and allowed

to appoint, but not communicate with, a lawyer for his defence, while the court denied them

sufficient time to prepare for trial.

45.

Mr. M. Fakhrawi was convicted on 30 March 2017 and 30 October 2017, with the

latter case resulting in a life sentence, after which he was transferred to Jau prison.

46.

Mr. M. Fakhrawi served out his sentence from his first conviction, but the court of

appeal and the Court of Cassation upheld his life sentence on 7 March 2018 and 6 May 2019,

respectively. He has now exhausted all domestic remedies, and his sentence is final.

47.

Mr. M. Fakhrawi remains at Jau prison, where the authorities arbitrarily transferred

him to an “isolation room” in section 2 on 29 April 2019. He can spend only 30 minutes per

day outside of his cell while detained in an isolation room, and has limited access to water

and no access to goods at the prison commissary or those mailed to him by his family. The

authorities also generally use section 2 as a detention centre for people convicted on charges

related to violence or drugs, and there are fears that he may be further endangered by this

measure.

48.

Mr. M. Fakhrawi was arrested and detained without a warrant, denied access to his

lawyer, not promptly brought before a judge, and subjected to torture, and had a confession

made while under torture used as evidence against him at trial. Thus, the source submits that

he was subjected to an unfair trial. The actions of Bahrain violate article 19 (a) and (b) of the

Constitution as well as the obligations of Bahrain under articles 9 and 14 of the Covenant,

under the Convention against Torture and under articles 9 and 11 of the Universal Declaration

of Human Rights, and therefore constitute deprivation of liberty falling under categories I

and III.

49.

Nooh Abdulla Hasan Ahmed Hasan al-Amroom is a national of Bahrain, born in 1998.

50.

On 13 or 14 September 2015, the authorities arrested Mr. Al-Amroom, then a minor,

in his house at approximately 4 a.m. on charges of illegal assembly and rioting. They held

him in pretrial detention at New Dry Dock for four months.

51.

Mr. Al-Amroom and his lawyer attended the court hearings, the sentencing hearing

and the release session. Mr. Al-Amroom was released on 6 or 7 January 2016, pending the

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continuation of the trial, at the conclusion of which the court sentenced him to three months

in prison.

52.

On 11 September 2016, officers from the National Security Agency arrested Mr. Al-

Amroom, then a minor, without a warrant upon his arrival at Bahrain International Airport,

returning from a trip to the Islamic Republic of Iran with his family. Six hours after his arrest,

the officers allowed Mr. Al-Amroom to make a brief phone call to his relatives, letting them

know he was being detained at the premises of the criminal investigation directorate. His

family was not allowed to see or talk to him after the phone call.

53.

Two or three days after his arrest, Mr. Al-Amroom’s family went to the criminal

investigation directorate to ask about him, but the authorities denied that he was there. Mr.

Al-Amroom’s attorney later informed him that the authorities suspected that he had placed a

fake bomb shaped like a suitcase on Sheikh Zayed Street.

54.

The officers did not bring Mr. Al-Amroom before a judge within 48 hours of his arrest.

Instead, they brought him before the Office of Public Prosecution more than a week after his

arrest, then transferred him back to the criminal investigation directorate. Criminal

investigation directorate officers reportedly tortured Mr. Al-Amroom to force him to confess

to the crimes they suspected him of committing.

55.

After the interrogation, the officers transferred Mr. Al-Amroom to New Dry Dock,

and further charged him with planting a false explosive. They also denied him access to his

attorney until his first court hearing, when he met her for the first time.

56.

Ultimately, the court convicted Mr. Al-Amroom and sentenced him to 11 years in

prison for planting a false explosive, rioting and illegal assembly. On appeal, the court

reduced his sentence to 9 years in prison, which the Court of Cassation upheld on 28 January

2019.

57.

It is reported that Mr. Al-Amroom’s torture worsened after his sentence, with the

prison guards shaving his hair and beating him on his head and stomach until he could not

move.

58.

Mr. Al-Amroom was arrested and detained without a warrant, denied access to his

lawyer, not promptly brought before a judge, and subjected to torture, and had a confession

made while under torture used as evidence against him at trial. Thus, the source submits that

he was subjected to an unfair trial. The actions of Bahrain violate article 19 (a) and (b) of the

Constitution as well as the obligations of Bahrain under articles 9 and 14 of the Covenant,

article 1 of the Convention against Torture and articles 9 and 11 of the Universal Declaration

of Human Rights, and therefore constitute deprivation of liberty falling under categories I

and III.

Legal analysis

59.

According to the source, the six cases above demonstrate a pattern of warrantless

arrest and the use of torture by officials to extract confessions, in violation of international

law. All of the individuals remain in Jau prison. All six arrests are reported to have been

undertaken without a warrant, accompanied by a warrantless search or raid. Four cases are

submitted as deprivation of liberty falling under category I, with no legal justification for the

detention. All six cases are submitted as deprivation of liberty falling under category III,

showing a regular practice of arrests and searches without the required authorization to do so,

or other violations to fair trial rights, including lack of access to legal counsel, hearings

conducted in absentia, and confessions obtained through torture used in judicial proceedings.

Response from the Government

60.

On 7 July 2020, 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 September 2020, detailed information about the

situation of Messrs. Alaiwi, Nesaif, Yusuf, A. Fakhrawi, M. Fakhrawi and Al-Amroom and

any comments on the source’s allegations.

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61.

The Government provided its response on 6 September 2020. It argues that the

individuals were afforded all legal safeguards at every stage, including questioning, evidence

gathering and interrogation by officials of the Office of Public Prosecution. This included the

issuance of arrest warrants and the video recording of interrogations to confirm that the

accused were not subjected to any pressure and that their lawyers were duly present.

Moreover, it states that the competent criminal court of first instance heard the cases over a

number of public hearings, in which the court scrupulously respected all the safeguards

enshrined in the Code of Criminal Procedure, as amended, including the presence of the

accused persons and their lawyers, who were able to refute the charges, speak before the

court and present their defence. These guarantees were ensured during proceedings before

the court of first instance and the court of appeal.

62.

With regard to the case of Mr. Al-Amroom, the Government explains that

investigations showed that he and others had, on 4 August 2016, gathered, set a fire and

planted an explosive device on Sheikh Zayed Street in A’ali. The charges are: (a) placing a

dummy explosive device in a public thoroughfare for terrorist purposes; (b) committing arson;

(c) gathering unlawfully; and (d) possessing Molotov cocktails.

63.

The Government explains that Mr. Al-Amroom was picked up from Bahrain

International Airport on 11 September 2016 because he was wanted by the General

Directorate of Criminal Investigation and Forensic Evidence for committing arson and

planting a suspicious device. His questioning was recorded in line with legal procedures and

he was referred to the Office of Public Prosecution, which ordered that he be held in custody

for 30 days. The sentence was handed down on 29 January 2017.

64.

The Government explains that during the questioning by the Office of Public

Prosecution, Mr. Al-Amroom made a detailed confession that he and the other accused

persons had committed the acts in question. His DNA was found on the items seized.

65.

Mr. Al-Amroom was remanded in custody and referred to the competent criminal

court. The court of first instance handed down a sentence of three years’ imprisonment, which

was upheld on appeal.

66.

Moreover, with regard to the health of Mr. Al-Amroom, the Government states that

he was not subjected to any beatings and has no other physical or mental problems. He

receives treatment and undergoes the necessary tests. The Government contests the torture

allegations.

67.

The Government also points out that Mr. Al-Amroom had been arrested on 14

September 2015 under the Act on the protection of society from acts of terrorism for unlawful

assembly and planting a suspicious device. His questioning had been recorded in line with

legal procedures and he had been referred to the Office of Public Prosecution on 20

September 2015, which had ordered that he be held in custody. On 16 January 2016, the

Office of Public Prosecution had ordered his release subject to guarantees.

68.

Concerning the cases of Mr. A. Fakhrawi and Mr. M. Fakhrawi, the Government states

that these two individuals joined a terror group aimed at reviving the terrorist Al-Wafaa

Islamic party, which seeks to overthrow the regime. They met with authorities of the Islamic

Republic of Iran and leaders of Lebanon-based Hizbullah, from whom they requested

financial support in order to continue the activities of their terror group inside Bahrain. The

charges against them are: (a) working on behalf of, and supplying information to, a foreign

State and a terrorist organization working in the interests of that State, from whom they

received money to carry out attacks harmful to the country’s national interests; (b) unlawfully

establishing and joining a terror group; and (c) financing a terror group.

69.

According to the Government, the two men were questioned by the Office of Public

Prosecution, and made a detailed confession regarding the commission of the acts.

70.

The Government argues that their health is normal and that they receive health care

when necessary.

71.

The Government points out that both individuals were arrested on 18 September 2015,

under the Act on the protection of society from acts of terrorism, for concealing a person

implicated in the detonation of a locally manufactured explosive device that led to the death

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of a member of the security forces. Their questioning was recorded in line with legal

procedures and they were referred to the Office of Public Prosecution on 21 September 2015,

which ordered that they be held in custody for seven days. On 6 December 2015, a warrant

was issued for them to be brought from prison to the Office of Public Prosecution on charges

of involvement in the formation of a terrorist cell. Their questioning was recorded in line

with legal procedures and they were referred to the Office of Public Prosecution on 22

December 2015, which ordered that they be held in custody for 30 days. Their sentences were

handed down on 30 October 2017.

72.

These cases were pursued by the General Directorate of Criminal Investigation and

Forensic Evidence and not by the police of the Northern Governorate.

73.

According to a report from the Jau Reform and Rehabilitation Centre, these

individuals are not being held in an isolation room. On 28 April 2019, they were simply

transferred to another block or cell, as per the regulations in force inside the Centre, and they

enjoy exactly the same rights as other inmates.

74.

Regarding the case of Mr. Yusuf, the Government states that information was received

indicating that this individual and others had helped convicted persons escape and leave

Bahrain; that he had received explosive materials, firearms and ammunition; that he had been

given training in how to manufacture explosive devices; and that he and others had helped to

conceal persons whom they knew had been convicted of criminal offences. Police inquiries

conducted with the help of secret informants established that this individual and others had

in fact participated in the incidents being investigated. The charges were: (a) receiving

military training; (b) possessing and manufacturing explosive materials; (c) possessing

firearms and ammunition; and (d) concealing persons whom they knew had been convicted

of criminal offences.

75.

The Government explains that Mr. Yusuf was questioned by the Office of Public

Prosecution regarding the relevant acts.

76.

According to the Government, Mr. Yusuf was arrested on 9 March 2017 and

questioned on 23 March 2017. The Office of Public Prosecution ordered that he be held in

preventive custody pending investigation; he was subsequently referred to the competent

criminal court. The court of first instance handed down a sentence of life imprisonment in

addition to a fine of 500 Bahraini dinars and loss of citizenship for the aforementioned

charges. The court of appeal upheld the sentence.

77.

The Government also explains that Mr. Yusuf receives the medical treatment and care

he needs from specialized doctors.

78.

Concerning the case of Mr. Nesaif, the Government states that on 12 February 2015,

a burning car was discovered in the area of Makharqa, parked transversally in such a way as

to block the road.

79.

According to the Government, police inquiries established that Mr. Nesaif had

participated in the incidents being investigated. He was charged with the setting of a fire for

terrorist purposes. Mr. Nesaif was questioned by the Office of Public Prosecution, and he

acknowledged that he had indeed committed the act in question.

80.

The Government specifies that Mr. Nesaif was arrested on 20 May 2015 and

questioned on 24 May 2015. The Office of Public Prosecution ordered that he be held in

preventive custody pending investigation; he was subsequently referred to the competent

criminal court. The court of first instance handed down a sentence of 5 years’ imprisonment.

Mr. Nesaif then lodged an appeal, which the court of appeal accepted in its form but rejected

on its merits, upholding the original sentence.

81.

The Government also explains that Mr. Nesaif was not arrested by the General

Directorate of Criminal Investigation and Forensic Evidence in 2011. He was arrested by the

Directorate on 20 May 2015 after fleeing and resisting attempts to detain him after he had

been sentenced to a term of imprisonment of 13 years. In addition, the Office of Public

Prosecution had issued a warrant for his arrest under the Act on the protection of society from

acts of terrorism. No order to search his home was issued on 21 May 2015.

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82.

Mr. Nesaif’s questioning was recorded in line with legal procedures and he was

referred to the Office of Public Prosecution on 24 May 2015, which ordered that he be held

in custody for 15 days. He was then transferred to the Jau Reform and Rehabilitation Centre,

as he had already been sentenced to a term of imprisonment of 13 years. The sentences

imposed on him in a number of different cases amount to about 31 years.

83.

The Government reports that Mr. Nesaif receives the medical treatment and care he

needs from specialized doctors.

84.

Finally, with regard to the case of Mr. Alaiwi, the Government indicates that an

incident took place wherein persons gathered, burned tyres and planted a dummy explosive

device in the area of Dar Kulaib on 5 May 2013. The Government states that they were acts

of terrorism, aimed at alarming the public and undermining security. Through inquiries, the

police established that this individual and others had participated in the incidents being

investigated. He was charged with: (a) placing a dummy explosive device on a public street

for terrorist purposes; (b) committing arson; (c) gathering unlawfully; and (d) possessing

Molotov cocktails.

85.

According to the Government, the Office of Public Prosecution levelled charges

against Mr. Alaiwi, questioned him and gathered the evidence that pointed to his guilt, then

referred the case to the competent criminal court. The court of first instance, in a sitting the

accused did not attend, handed down a sentence of three years’ imprisonment. Mr. Alaiwi

then lodged an appeal with the court of appeal, which upheld the sentence.

86.

The Government states that Mr. Alaiwi was not arrested by members of the security

forces belonging to the General Directorate of Criminal Investigation and Forensic Evidence.

Nor was he transferred to the building of the General Directorate for questioning, as has been

alleged by the source.

87.

The Government also explains that Mr. Alaiwi receives psychological treatment but

is not suffering from any other illnesses or injuries. Moreover, the Government contests the

torture allegations.

88.

The Government describes national redress mechanisms in Bahrain and explains that

the individuals concerned have submitted complaints to the Office of the Ombudsman or to

the Special Investigation Unit.

89.

The Government notes that the Office of the Ombudsman received, on 24 February

2019, a request for Mr. Alaiwi to receive a private visit. The request was duly resolved.

Moreover, the Special Investigation Unit, on 14 November 2016, received from the Office

of Public Prosecution an allegation made by Mr. Alaiwi that he had been beaten by members

of the security forces while he was in the administrative offices of the Jau Reform and

Rehabilitation Centre. The Unit proceeded to an investigation and the case has been filed, as

the identity of the perpetrator remains unknown.

90.

In the case of Mr. Yusuf, the Government reports that the Office of the Ombudsman

received a complaint concerning ill-treatment during the process of evidence-gathering. The

Office investigated the allegation and, since the incident raised the suspicion that a crime

might have taken place, referred the complaint to the Special Investigation Unit. Mr. Yusuf

was examined by the Unit’s forensic doctor, who concluded that there were no traces of injury.

The doctor also examined the complainant’s medical report of 7 June 2017, which contained

no record of an injury. The Unit completed its investigation by questioning the members of

the security forces who had carried out the arrest; they denied the allegations. The Unit also

asked the police to conduct inquiries into the incident, then ordered that the complaint be

archived for lack of evidence inasmuch as the individual’s statements were unsubstantiated

and not backed up by any other proof.

91.

In the case of Mr. A. Fakhrawi, the Government reports that, on 16 January 2016, the

Office of the Ombudsman received a claim that Mr. A. Fakhrawi’s home had been searched

without any warrant being shown, that his physical integrity had been compromised and that

he had been insulted and ill-treated during the evidence-gathering process. The Office

investigated the allegation and, since the incident raised the suspicion that a crime might have

taken place, referred the complaint to the Special Investigation Unit. The Government

explains that it also received two complaints from Mr. A. Fakhrawi regarding the case in

A/HRC/WGAD/2020/87

10

which he was charged. The first complaint, dated 11 October 2015, from the Office of Public

Prosecution, stated that the individual concerned had claimed, during questioning by

prosecutors, that he had been beaten by the security forces at the moment of his arrest. When

asked about this on 29 October 2015, he refused to talk about the matter and stated that he

had made no complaint. The Unit thus concluded that the complaint should be archived for

lack of evidence inasmuch as the complainant had not cooperated with the Unit to help it

gather evidence and discover the truth. The second complaint, which reached the Unit on 4

February 2016 from the Office of the Ombudsman, stated that the individual concerned

claimed that he had been beaten while being questioned by the security forces to make him

confess to the charges against him. The complainant was summoned a number of times for

the Unit to ask him about the details of his claims, but he refused to appear. A police officer

was sent to his cell to ask why he refused to appear; he stated that he did not wish to do so

until he consulted his lawyer. His lawyer subsequently submitted a letter in which he asked

for the complainant’s statement to be heard. Mr. A. Fakhrawi was again summoned a number

of times and again refused to appear. The Unit nonetheless pursued its investigations,

examining the individual’s medical records for the months of September, October, November

and December 2015; it found no evidence of any injuries consistent with his claims. It also

examined the record of his interrogation by prosecutors, which contained no allegation by

the individual that he had suffered torture, although he did claim to have been beaten at the

moment of his arrest, as per his first complaint. The Unit sought information from the

member of the security forces who had questioned the complainant; he denied the allegations.

The Unit also asked the police to conduct inquiries into the incident, then ordered that the

complaint be archived for lack of evidence and of cooperation on the part of the complainant.

92.

With regard to the case of Mr. M. Fakhrawi, the Special Investigation Unit received,

on 4 February 2016, a complaint through the Office of the Ombudsman, in which Mr. M.

Fakhrawi claimed that he had been beaten by security forces. The complainant was

summoned a number of times for the Unit to ask him about the details of his claims, but he

refused to appear. Nonetheless, the Unit pursued its investigations by questioning the

complainant’s wife. She stated that her husband had asked her to submit the complaint and

that she did not know why he had refused to appear when summoned. The Unit examined the

report of the forensic doctor regarding the complainant, which showed that he had had no

sign of any injury. It also studied the individual’s medical records for the months of

September, October, November and December 2015, and January 2016, which also contained

no record of any injury. The Unit sought information from the member of the security forces

who had questioned the complainant; he denied the allegations. The Unit also asked the

police to conduct inquiries into the incident, then ordered that the complaint be archived for

lack of evidence and of cooperation on the part of the complainant.

93.

Regarding Mr. Nesaif, the Government states that requests regarding his health were

made and resolved.

94.

Concerning Mr. Al-Amroom, neither the Office of the Ombudsman nor the Special

Investigation Unit have received any complaints.

Further comments from the source

95.

The Working Group sent the response of the Government to the source. On 23

September 2020, the source submitted comments on the State’s response. The source contests

the Government’s arguments and observes that the Government fails to discuss multiple

matters, such as arrests without warrants, confessions under torture, the denial of access to

legal counsel, the disappearance of some of the individuals, and incommunicado detention,

and reiterates its previous submission that the six individuals were subjected to unfair trials,

resulting in deprivation of liberty falling within categories I and III.

96.

Particularly, with regard to Mr. Al-Amroom, the source states that the Government

failed to address all three charges laid against Mr. Al-Amroom following his arrest on 11

September 2016, and that he was sentenced to nine years of prison in total, not just to three

years. Moreover, the source reiterates that, when the family of Mr. Al-Amroom asked about

him at the premises of the criminal investigation directorate a few days after his arrest, they

were told he was not there, and thus he had been subjected to enforced disappearance.

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11

97.

Regarding Mr. M. Fakhrawi, the source states that the Government also failed to

address his enforced disappearance.

98.

Regarding Mr. Yusuf, the source notes that the Government failed to address the legal

basis on which Mr. Yusuf had been arrested on 9 March 2017. Accusations made by his co-

defendant were related to allegations of acts committed between 2013 and 2014, which makes

Mr. Yusuf’s arrest in March 2017 legally non-justifiable. Moreover, the Government did not

address Mr. Yusuf’s unlawful detention for 14 days between 9 March and 23 March 2017

before the Office of Public Prosecution interrogated him.

99.

The Government failed to address the fact that after the issuance of the first

communication, in which Mr. Yusuf was declared innocent, an officer told Mr. Yusuf that he

would be put in prison for life, and that he would never leave prison. In addition, measures

were not taken with regard to the officer who threatened Mr. Yusuf.

100.

With regard to Mr. Nesaif, the source notes that the Government failed to address the

charges issued in 2011 against him, when he was 16 years old and thus a minor, and did not

mention the sentences that were issued in absentia during the four years he was in hiding.

The sentences totalled 13 years in prison. Moreover, the source points out that the

Government stated that Mr. Nesaif had been manufacturing explosives and flammable

packages. However, it failed to mention when and where the packages had been confiscated

or to provide the evidence that incriminated Mr. Nesaif as the manufacturer. Also, the

Government addressed only the charges of igniting a fire in execution of a terrorist purpose,

and failed to address the other charges, which amounted to 13 years in prison, and the

sentence of 3 years in prison issued on 26 May 2016.

Discussion

101.

The Working Group thanks the parties for their cooperation.

102.

In determining whether the detention of the six above-mentioned individuals was

arbitrary, the Working Group has regard to the principles established in its jurisprudence to

deal with evidentiary issues. If the source has established a prima facie case for breach of

international law constituting arbitrary detention, the burden of proof should be understood

to rest upon the Government if it wishes to refute the allegations. 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).

i.

Category I

103.

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

category I, which concerns deprivation of liberty without legal basis.

104.

The source submits, and the Government has failed to substantiate its claim to the

contrary, that the six above-mentioned individuals were not presented with an arrest warrant

or informed of the reasons for their arrest at the time of arrest.

105.

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 implemented in the present case.1

106.

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 personal liberty and security and the prohibition

of arbitrary deprivation under articles 3 and 9 of the Universal Declaration of Human Rights,

article 9 (1) of the Covenant, article 37 (b) of the Convention on the Rights of the Child and

principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any

1 See, for example, opinions No. 93/2017, para. 44; No. 33/2020, paras. 53 and 71; and No. 34/2020,

para. 45.

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12

Form of Detention or Imprisonment.2 The Working Group has been presented with no valid

grounds to justify any exception to this principle in the present case.

107.

The Working Group also finds that, in order to invoke a legal basis for deprivation of

liberty, the authorities should have informed each of the six individuals of the reasons for

their arrest, at the time of arrest, and promptly informed them of the charges against them;3

the allegation that they were not so informed has not been contested by the Government. The

authorities’ failure to do so violates articles 3 and 9 of the Universal Declaration of Human

Rights, article 9 (1) and (2) of the Covenant and, for the cases of Mr. Alaiwi and Mr. Al-

Amroom, article 37 (b) of the Convention on the Rights of the Child, as well as principle 10

of the Body of Principles, and renders their arrest devoid of any legal basis.4

108.

The Working Group notes that the source stated that the six individuals were not

brought promptly before a judge. The Government explained, in its response, that all the

individuals were questioned by the Office of Public Prosecution, which then ordered that they

be held in custody. The Working Group recalls that, while international standards set out in

the Working Group’s jurisprudence prescribe that an arrested person is to be brought before

a judge within 48 hours,5 a stricter standard of 24 hours was applicable for Mr. Alaiwi and

Mr. Al-Amroom under the Convention on the Rights of the Child. 6 In addition, the

individuals were brought before the Office of Public Prosecution, which cannot be considered

a judicial authority for the purposes of article 9 (3) of the Covenant.7

109.

In light of the above, the Government has violated articles 3 and 9 of the Universal

Declaration of Human Rights, article 9 (1) and (3) of the Covenant and article 37 (b) of the

Convention on the Rights of the Child, and principles 11, 37 and 38 of the Body of

Principles.8

110.

The Working Group also notes that the source has reported that Mr. Yusuf was held

incommunicado for a period of 25 days, and that Mr. M. Fakhrawi and Mr. Al-Amroom were

subjected to enforced disappearance. The Government failed to substantiate its claim to the

contrary. As the Working Group has argued, holding persons so that they have no access to

the outside world, in particular to their family members and lawyers, violates their right to

challenge the lawfulness of detention before a court under article 9 (4) of the Covenant.9

Judicial oversight of the deprivation of liberty is a fundamental safeguard of personal

liberty, 10 and is essential in ensuring that detention has a legal basis. Given that these

individuals were held incommunicado or subjected to enforced disappearance, they were

unable to challenge their detention, and their right to an effective remedy under article 8 of

the Universal Declaration of Human Rights and article 2 (3) of the Covenant was violated.

In addition, enforced disappearance contravenes articles 9 and 14 of the Covenant, and

constitutes a particularly aggravated form of arbitrary detention.11 Mr. M. Fakhrawi and Mr.

2 The Working Group has maintained from its early years that the practice of arresting persons without

a warrant renders their detention arbitrary. See, for example, decision No. 1/1993, paras. 6–7; opinion

No. 33/2020, para. 54; and opinion No. 34/2020, para. 46. See also article 14 (1) of the Arab Charter

on Human Rights.

3 See, for example, opinion No. 10/2015, para. 34. See also opinions No. 32/2019, para. 29; No.

33/2020, para. 55; and No. 34/2020, para. 47.

4 See also article 14 (1) and (3) of the Arab Charter on Human Rights.

5 See, for example, opinions No. 57/2016, paras. 110–111; No. 33/2020, para. 75; and No. 34/2020,

para. 51. See also Human Rights Committee, general comment No. 35 (2014), para. 33, citing Kovsh

v. Belarus (CCPR/C/107/D/1787/2008), paras. 7.3–7.5; CCPR/C/79/Add.89, para. 17; and

CCPR/CO/70/GAB, para. 13; and CCPR/C/SLV/CO/6, para. 14.

6 Committee on the Rights of the Child, general comment No. 10 (2007), para. 83; see also Committee

on the Rights of the Child, general comment No. 24 (2019), para. 90 and opinion No. 26/2019, para.

89.

7 Human Rights Committee, general comment No. 35, para. 32; and opinions No. 14/2015, para. 28 and

No. 5/2020, para. 72.

8 See also articles 14 (1) and (5) and 23 of the Arab Charter on Human Rights.

9 See opinions No. 45/2017, No. 46/2017, No. 32/2019, No. 33/2019 and No. 45/2019.

10 A/HRC/30/37, para. 3.

11 Human Rights Committee, general comment No. 35, para. 17. See also opinions No. 5/2020, para. 74;

No. 6/2020, para. 43; No. 11/2020, para. 41; and No. 41/2020, para. 61.

A/HRC/WGAD/2020/87

13

Al-Amroom were also placed outside the protection of the law, in violation of article 6 of the

Universal Declaration of Human Rights and article 16 of the Covenant.12

111.

The Working Group further observes from the facts, which were not contested by the

Government, that the six individuals were not afforded the right to take proceedings before a

court so that it could decide without delay on the lawfulness of their detention in accordance

with articles 3, 8 and 9 of the Universal Declaration of Human Rights, articles 2 (3) and 9 (1)

and (4) of the Covenant and, for Mr. Alaiwi and Mr. Al-Amroom, article 37 (b) of the

Convention on the Rights of the Child, as well as principles 11, 32 and 37 of the Body of

Principles.

112.

The Working Group therefore considers that the deprivation of liberty of Messrs.

Alaiwi, Nesaif, Yusuf, A. Fakhrawi, M. Fakhrawi and Al-Amroom lacks a legal basis and is

thus arbitrary, falling under category I.

ii.

Category III

113.

The source alleges that Messrs. Alaiwi, Nesaif, Yusuf, A. Fakhrawi, M. Fakhrawi and

Al-Amroom had limited or no access to legal counsel of their choice after their arrests and/or

during the proceedings. The Government stated that legal assistance had been provided to all

the individuals, in accordance with the Criminal Code. However, the Working Group notes

that the Government has not further substantiated its claim.

114.

In the Working Group’s view, the Government failed to respect the right of all six

individuals to legal assistance, which is inherent in the right to liberty and security of person

as well as 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, articles 9 (1) and 14 (1) of the Covenant and, for Mr. Alaiwi

and Mr. Al-Amroom, articles 37 (b) and (d) and 40 (2) (b) (ii) and (iii) of the Convention on

the Rights of the Child, as well as principles 15, 17 and 18 of the Body of Principles and

principles 1, 5, 7, 8, 21 and 22 of the Basic Principles on the Role of Lawyers.13

115.

The Working Group considers that this violation substantially undermined and

compromised the capacity of the six individuals to defend themselves in any subsequent

judicial proceedings. As the Working Group has stated, 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; access to legal counsel should not be unlawfully or

unreasonably restricted.14

116.

It appears to the Working Group that the individuals were not fully afforded the due

process right to be visited by and to correspond with their 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), as well as, for Mr. Alaiwi

and Mr. Al-Amroom, article 37 (c) of the Convention on the Rights of the Child. Giving

prompt and regular access to family members, and to independent medical personnel and

lawyers, is an essential and necessary safeguard for the prevention of torture as well as

protection against arbitrary detention and infringement of personal security.15

117.

The Working Group also expresses its grave concern at the allegations of torture or

ill-treatment in connection with the arrest and/or detention of the six individuals. It notes that,

12 Opinions No. 59/2019, para. 64 and No. 5/2020, para. 87.

13 See also articles 12, 13 (1), 14 (1) and 16 (2) and (3) of the Arab Charter on Human Rights.

14 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 (A/HRC/30/37, annex), principle 9

and guideline 8. See also Human Rights Committee, general comment No. 32 (2007), para. 34.

15 See, for example, opinions No. 10/2018, para. 74; No. 11/2020, No. 33/2020, para. 87; and No.

34/2020, para. 57.

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14

in some instances, the Government stated that it had investigated the allegations, but that the

cases had been filed or archived.

118.

The Working Group finds that the source has presented credible allegations that the

absolute prohibition of torture enshrined in article 5 of the Universal Declaration of Human

Rights, article 7 of the Covenant, articles 2 and 16 (1) of the Convention against Torture and

article 37 (a) of the Convention on the Rights of the Child has been violated in the present

case.16 In addition, the Government’s reliance on the confessions of Messrs. Nesaif, Yusuf,

A. Fakhrawi, M. Fakhrawi and Al-Amroom for their criminal convictions further violates

article 14 (3) (g) of the Covenant, article 15 of the Convention against Torture and article 40

(2) (b) (iv) of the Convention on the Rights of the Child.17

119.

The Working Group further expresses its gravest concern at Mr. Yusuf’s 25-day

incommunicado detention and the enforced disappearance of Mr. M. Fakhrawi and Mr. Al-

Amroom. The General Assembly has consistently held, first in its resolution 60/148 and most

recently in its resolution 74/143 of 18 December 2019, that prolonged incommunicado

detention or detention in secret places can facilitate the perpetration of torture and other cruel,

inhuman or degrading treatment or punishment and can in itself constitute a form of such

treatment. 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.

120.

The Working Group also notes that Mr. Alaiwi was denied permission to present

evidence and challenge evidence presented against him. The Government replied that fair

trial guarantees were provided, without further elaboration on this allegation. The Working

Group recalls that the right to equality before courts and tribunals also ensures equality of

arms. This means that the same procedural rights are to be provided to all the parties unless

distinctions are based on law and can be justified on objective and reasonable grounds, not

entailing actual disadvantage or other unfairness to the defendant.18 In this case, the denial to

challenge or present evidence violated article 14 (1) of the Covenant and article 40 (2) (b)

(iii) of the Convention of the Rights of the Child.

121.

The Working Group also raises its gravest concern at the trial in absentia of Mr. Nesaif

in 2011, while he was a minor. It recalls that article 14 (3) (d) of the Covenant provides that

everyone has the right to be tried in his or her presence. The Human Rights Committee has

further stated that in the case of trials in absentia, article 14 (3) (a) of the Covenant requires

that, notwithstanding the absence of the accused, all due steps have been taken to inform

accused persons of the charges and to notify them of the proceedings.19 In the case at hand,

the Working Group considers that the trial in absentia violated article 14 (3) (d) of the

Covenant and article 40 of the Convention on the Rights of the Child.

122.

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 the deprivation of liberty of Messrs.

Alaiwi, Nesaif, Yusuf, A. Fakhrawi, M. Fakhrawi and Al-Amroom an arbitrary character that

falls within category III.

123.

The Working Group notes that the present opinion is only one of many in which the

Working Group has found the Government of Bahrain in violation of its international human

rights obligations.20 The Working Group is concerned that this indicates a widespread or

systemic arbitrary detention in Bahrain, which amounts to a serious violation of international

law. The duty to comply with international human rights law rests with all State organs,

16 See also articles 8 (1) and 20 (1) of the Arab Charter on Human Rights.

17 See also article 16 (6) of the Arab Charter on Human Rights.

18 Human Rights Committee, general comment No. 32, para. 13.

19 Ibid., para. 31.

20 See decisions No. 6/1994, No. 35/1995, No. 38/1995, No. 21/1996, No. 22/1996, and No. 23/1996

and opinions No. 15/1997, No. 6/1998, No. 15/2000, No. 6/2012, No. 12/2013, No. 1/2014, No.

22/2014, No. 25/2014, No. 27/2014, No. 34/2014, No. 37/2014, No. 23/2015, No. 41/2015, No.

35/2016, No. 55/2016, No. 13/2018, No. 51/2018, No. 79/2018, No. 31/2019, No. 59/2019, No.

73/2019, No. 5/2020 and No. 41/2020.

A/HRC/WGAD/2020/87

15

officers and agents as well as all other natural and legal persons.21 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.22

124.

The Working Group would welcome the opportunity to engage constructively with

the Government through a country visit. As Bahrain is currently a member of the Human

Rights Council, it would be timely for the Government to extend an invitation to visit, and

the Working Group looks forward to a positive response to its request.

Disposition

125.

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

The deprivation of liberty of Ali Mahdi Abdulhusain Mohamad Alaiwi, Hasan Asad

Jasim Jasim Nesaif and Nooh Abdulla Hasan Ahmed Hasan al-Amroom, being in

contravention of articles 3, 8, 9 and 10 of the Universal Declaration of Human Rights,

articles 2 (3), 9 and 14 of the International Covenant on Civil and Political Rights and

articles 37 and 40 of the Convention on the Rights of the Child, is arbitrary and falls

within categories I and III.

The deprivation of liberty of Habib Hasan Habib Yusuf, Ali Ahmed Ali Ahmed

Fakhrawi and Mohamed Ahmed Ali Ahmed Fakhrawi, being in contravention of

articles 3, 8, 9, 10 of the Universal Declaration of Human Rights and articles 2 (3); 9

and 14 of the International Covenant on Civil and Political Rights, is arbitrary and

falls within categories I and III.

126.

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

to remedy the situation of Messrs. Alaiwi, Nesaif, Yusuf, A. Fakhrawi, M. Fakhrawi and Al-

Amroom 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.

127.

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

case, the appropriate remedy would be to release Messrs. Alaiwi, Nesaif, Yusuf, A. Fakhrawi,

M. Fakhrawi and Al-Amroom immediately and accord them 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 their immediate release.

128.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Messrs.

Alaiwi, Nesaif, Yusuf, A. Fakhrawi, M. Fakhrawi and Al-Amroom and to take appropriate

measures against those responsible for the violation of their rights.

129.

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.

130.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

131.

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:

21 Opinions No. 52/2014, para. 51; No. 61/2018, para. 77; and No. 56/2019, para. 97. See also

CAT/C/CAN/CO/6, para. 15 and CAT/C/CAN/CO/7, paras. 40–41.

22 See A/HRC/13/42, para. 30, and, for example, opinions No. 1/2011, para. 21; No. 51/2017, para. 57;

and No. 56/2017, para. 72.

A/HRC/WGAD/2020/87

16

(a)

Whether Messrs. Alaiwi, Nesaif, Yusuf, A. Fakhrawi, M. Fakhrawi and Al-

Amroom have been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Messrs. Alaiwi,

Nesaif, Yusuf, A. Fakhrawi, M. Fakhrawi and Al-Amroom;

(c)

Whether an investigation has been conducted into the violation of the rights of

Messrs. Alaiwi, Nesaif, Yusuf, A. Fakhrawi, M. Fakhrawi and Al-Amroom and, if so, the

outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Bahrain with its international obligations in line with the

present opinion;

(e)

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

132.

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.

133.

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 cases 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.

134.

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.23

[Adopted on 26 November 2020]

23 Human Rights Council resolution 42/22, paras. 3 and 7.