Opinion; Subjects: BAHRAIN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.22-11353(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 84/2021 concerning Ali Naser Ahmed Naser, Ali Hasan
Mansoor Yusuf Marzooq AlJamri, Ali Mohamed Hasan Ali Husain,
Sayed Redha Baqer Mahdi Mohsen Fadhul and Sayed Falah Hasan
Naser Mohsen Fadhul (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 4 June 2021 the Working
Group transmitted to the Government of Bahrain a communication concerning Ali Naser
Ahmed Naser, Ali Hasan Mansoor Yusuf Marzooq AlJamri, Ali Mohamed Hasan Ali Husain,
Sayed Redha Baqer Mahdi Mohsen Fadhul and Sayed Falah Hasan Naser Mohsen Fadhul
(the five individuals). The Government replied to the communication on 29 July 2021. The
State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
United Nations
A/HRC/WGAD/2021/84
General Assembly
Distr.: General
20 July 2022
Original: English
A/HRC/WGAD/2021/84
2
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.
The case summarized hereafter relates to five young individuals who were sentenced
in a mass trial of 18 defendants known as the Soleimani Cell case on 31 January 2021.
5.
Ali Naser Ahmed Naser (case 1) is a Bahraini national born in 1997. He was an
industrial secondary school student at the time of his arrest. Mr. Naser is the grandson of
Sheikh Isa Qasim,1 a prominent spiritual Shia leader in Bahrain who was stripped of his
nationality on 20 June 2016 and exiled for his opposition to the system in Bahrain.
6.
Mr. Naser had reportedly been arrested several times since the beginning of the pro-
democracy movement in Bahrain even at a young age. He was first arrested on 18 April 2013,
when he was only 14 years old. He was arrested at a friend’s house and the authorities denied
that he was in their custody for eight days. However, on the ninth day, Mr. Naser called his
family to inform them that he was in an investigation building. During his imprisonment, he
was allegedly subjected to severe torture and faced medical negligence. He was arrested for
a second time at his grandfather’s house on 21 December 2016 when a peaceful assembly
was violently dispersed. He was sentenced to one year in prison and while he was released
on bail, he was reportedly arrested again to serve the remainder of the sentence.
7.
On 16 January 2020, at 2.30 a.m., a group of masked and armed civilian officers,
commando forces and security officers 2 stormed Mr. Naser’s family house and started
searching his room. The door to his room was closed and his family members could not see
what was happening inside. After about 45 minutes, the masked officers handcuffed Mr.
Naser and carried him outside as he could not stand on his own. The officers did not present
a warrant or state any reason for his arrest.
8.
Around an hour and a half later, Mr. Naser called his family members to inform them
that he was at the Criminal Investigations Department. He reportedly sounded clearly tired
and exhausted during the call. The source adds that these details indicate that he had likely
been subjected to torture and ill-treatment. Following this call, all contact with Mr. Naser
was reportedly cut off, as he was made to forcibly disappear for 27 consecutive days and his
family was unaware of his whereabouts. Mr. Naser’s family was only able to visit him on 13
February 2020.
9.
On 19 January 2020, Mr. Naser’s family filed a complaint with the Ombudsman of
the Ministry of the Interior regarding the mistreatment and assault he had faced during his
arrest, but on 8 March 2020, the Ombudsman reportedly claimed that no offences were found
to have been committed by the Ministry. On 22 January 2020, Mr. Naser’s family filed
another complaint with the National Institute for Human Rights but at the time of the source’s
submission, there had been no follow-up by the institution.
10.
During Mr. Naser’s 27-day disappearance, investigation officers allegedly
interrogated and tortured him at the Criminal Investigations Department building and as a
result, he confessed to the charges against him. Moreover, the public prosecutor took Mr.
Naser’s statement at the same building. Throughout the investigation period, Mr. Naser’s
lawyer was not allowed to be present and assist him. Mr. Naser’s family could not get
information about the mistreatment he faced at the Criminal Investigations Department
because he does not like to talk about the interrogation and has refused to tell them details.
11.
On 31 January 2021, Mr. Naser was convicted of (a) joining a group or organization
for the purpose of disrupting the law or violating rights and freedoms; (b) training to use
weapons and explosives with the intention of committing terrorist crimes; and (c) providing
1 The source refers to:
https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20375&LangID=E.
2 The source notes that both “riot police” and “commando forces” typically refer to the Special Security
Force Command.
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3
or receiving support and funding for an organization that practices terrorism. He was
sentenced to 15 years in prison. Although Mr. Naser’s lawyer was present during the court
hearings, they were not allowed to communicate before, during or after the sessions. In March
2021, he was transferred from medical isolation at the Dry Dock Detention Centre to Jau
central prison (building 16). He is currently being held in building 18 at Jau prison.
12.
Ali Hasan Mansoor Yusuf Marzooq AlJamri (case 2) is a Bahraini national born in
2002. He was a high-school student aged 17 at the time of his arrest.
13.
On 16 January 2020, at around 2.30 a.m., a large number of security patrols from the
Ministry of the Interior, masked riot forces and commandos reportedly stormed and raided
the family home of Mr. AlJamri. After searching his room and seizing his phone and identity
card, they handcuffed him and took him to a private car, indicating only that the reason for
his arrest was a criminal one. Although officers told Mr. AlJamri’s relative that they had an
order to arrest him, they did not present any proof. The arrest was filmed on camera by the
police.
14.
The next day, on 17 January 2020, at 9 a m., Mr. AlJamri called his family for half a
minute and informed them that he was at the Criminal Investigations Department. He was
under investigation for a month following his arrest, during which time his calls with his
family lasted for only 30 seconds and he was told what to say. He could not disclose his
location to his family members. They are thus not entirely sure whether he was at the Criminal
Investigations Department throughout that month and Mr. AlJamri was consequently
allegedly forcibly disappeared. His relatives were only able to visit him for half an hour on
22 February 2020, 37 days after his arrest.
15.
During the interrogation, investigation officers allegedly tortured and mistreated Mr.
AlJamri in order to extract a confession; he succumbed to the torture and confessed to the
charges brought against him. He reportedly had to be transferred to hospital due to the injuries
he sustained from torture. When he was later presented before the Public Prosecutor, Mr.
AlJamri reportedly denied all the charges against him and confirmed that he was coerced into
confessing and signing his confessions. Throughout this investigation period, the Ministry of
the Interior did not allow Mr. AlJamri to appoint a lawyer and his family was only able to
appoint one several months after his arrest.
16.
Mr. AlJamri was charged with (a) joining a group or organization for the purpose of
disrupting the law or violating rights and freedoms, and (b) providing or receiving funding
for an association that practised terrorism. He was reportedly only present at the hearing
before the High Criminal Court on 23 August 2020, where he was not even questioned about
the charges filed against him. He did not attend most of the trial hearings, including the
session on 31 January 2021, where he was sentenced, in absentia, to 10 years in prison. The
source believes that the reason for his absence might have been his skin condition (see below)
as well as the coronavirus disease (COVID-19) pandemic.
17.
Since his arrest, Mr. AlJamri’s physical and mental health has greatly deteriorated
from being allegedly subjected to torture and discrimination based on his religious beliefs. In
November 2020, after experiencing severe itching, medical examinations showed that he had
been infected with scabies. He was reportedly being held in an overcrowded cell with less
than minimal hygienic standards, which is where he most likely contracted his skin condition.
Consequently, he was prescribed a cream and was transferred to isolation, where he was
reportedly denied video calls with his family, furthering his psychological distress. He is
clearly losing weight and his mental well-being has also continuously deteriorated, given his
young age and the fact that he has not been able to complete his education since his
incarceration.
18.
The source notes that Mr. AlJamri is constantly discriminated against on the basis of
his religious beliefs. He had been requesting a Qur’an since his detention but was not
permitted to have one. Although his family submitted a request indicating that they could
provide and send him the Qur’an, the authorities reportedly delayed this procedure and he
was only able to receive it after six months. Until now, he has not been allowed to receive
religious books and prayer books related to Ashura or any that are specific to the Shia sect.
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19.
After spending a week in solitary isolation at the Dry Dock Detention Centre, Mr.
AlJamri, an 18-year-old student, was transferred to building 17 of New Dry Dock prison,
where he is currently serving his sentence.
20.
Ali Mohamed Hasan Ali Husain (case 3) is a Bahraini national born in 1997. He was
unemployed and 22 years old at the time of his current arrest.
21.
On 16 January 2020, at dawn, a group of officers from the Ministry of the Interior,
General Security, riot police and officers in civilian clothes from the Criminal Investigations
Department raided the house where Mr. Husain was staying with his two cousins, including
Sayed Redha Baqer Mahdi Mohsen Fadhul (see case 4 below). All three of them were
reportedly arrested that morning, without a warrant or any reason given for their arrest.
22.
Mr. Husain was reportedly first able to call his family one week after his arrest. During
that time he was thus allegedly forcibly disappeared and his family did not have any
information on his whereabouts. When he called, he was only able to tell his family that he
was fine and that he was being held at the Criminal Investigations Department. He was
subsequently transferred to other locations and interrogated for three weeks and his family
was only able to visit him one month after his arrest. He was thus effectively forcibly
disappeared for four weeks.
23.
During the three weeks following his arrest, Mr. Husain was reportedly taken from
the Criminal Investigations Department to Jau prison (building 15) where he was
interrogated. He was not allowed to appoint a lawyer to assist him during the interrogations.
At the police academy in Jau prison, investigation officers from the Criminal Investigations
Department and civilian officers from the Ministry of the Interior allegedly tortured Mr.
Husain in order to extract confessions from him. They subjected him to psychological torture,
blindfolded him, beat and slapped him on the ears, hit him on the head and forcefully pulled
his hair. Despite such ill-treatment, Mr. Husain reportedly only confessed to receiving sums
of money that he distributed to families of individuals killed by the Bahraini authorities.
24.
On 31 January 2021, Mr. Husain was convicted of (a) joining a group or organization
for the purpose of disrupting the law or violating rights and freedoms, and (b) providing or
receiving funding for an association that practised terrorism. He was sentenced to 10 years
in prison. He did not have a lawyer at the time and as such was unable to properly prepare
for trial or defend himself.
25.
Before his arrest, Mr. Husain’s psychological and physical health was reportedly frail
from being previously arrested and imprisoned for four years, from 2015 to 2019, on charges
of participating in demonstrations and riots, and from a severe injury to his jaw caused by the
excessive use of force by the security forces who were dispersing a gathering of worshippers
performing a religious ritual in the Sanabis area in 2015. In fact, during this time, Mr. Husain
reportedly suffered from depression and even attempted to commit suicide by ingesting
shampoo. At the time of his second and current arrest, he had still not completed the treatment
for the injury to his jaw.
26.
Since his detention, Mr. Husain’s health has deteriorated as he was allegedly almost
tortured to death. During the interrogation period, he was taken to a forensic doctor following
a hand injury sustained under torture. The doctor issued a report confirming that his hand
injury resulted from torture and photographed it, however the report was never submitted to
the judge.
27.
In mid-May 2021, Mr. Husain was transferred from Dry Dock prison to Jau prison,
building 20, where he currently remains.
28.
Sayed Redha Baqer Mahdi Mohsen Fadhul (case 4) is a Bahraini national born in
2004. He was a high-school student aged 15 at the time of his arrest.
29.
At dawn on 16 January 2020, a group of officers and riot police reportedly raided the
villa of one of Mr. Fadhul’s close family members where he was staying with two relatives,
including his cousin, Ali Mohamed Hasan Ali Husain (see case 3 above). The authorities
arrested all three of them without giving them a reason and without presenting an arrest
warrant. Mr. Fadhul’s family was on a trip outside Bahrain at the time.
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30.
Two days later, Mr. Fadhul was reportedly allowed to call a relative for a few seconds
to tell him that he was being interrogated and that he was fine and safe, without disclosing
his location. He was allegedly forcibly disappeared for around one month following his
arrest; his family could not contact him and did not know his whereabouts or the reason for
his arrest.
31.
During this time, investigation officers interrogated Mr. Fadhul and allegedly
extensively tortured him in order to extract a confession. His lawyer was not allowed to attend
the interrogation. On the physical level, they forced him to stand for long periods of time,
blindfolded him, deprived him of adequate sleep, food, drinking water and winter clothing,
placed him in solitary confinement, tightened his handcuffs, beat him and electrocuted him.
On the psychological level, officers continuously insulted and mocked him, and constantly
threatened to hurt his genitals, to sexually assault him and to further harm him physically.
Succumbing to this torture after three days, Mr. Fadhul, a minor, reportedly confessed to
anything the officers accused him of. Two to three days before his transfer to the Dry Dock
detention centre, he was taken for questioning to the Public Prosecution Office where, despite
denying all the charges against him, he was reportedly forced to sign a report without being
allowed to read it.
32.
At the time of the source’s submission, Mr. Fadhul’s close family members had not
been allowed to visit him due to COVID-19 restrictions. Following his alleged forced
disappearance of one month, he was transferred to the Dry Dock detention centre and since
then he has been able to video call his family once a week for 10 to 15 minutes.
33.
On 31 January 2021, Mr. Fadhul was convicted of (a) joining a group or organization
for the purpose of disrupting the law or violating rights and freedoms and (b) providing or
receiving support and/or funding for an association that practised terrorism. He was
sentenced to 15 years in prison. The total money claimed to have been collected by Mr.
Fadhul was BD32, equivalent to $84. The charges made against Mr. Fadhul refer to acts he
allegedly committed three years prior to his detention, namely in 2017, when he was only 12
years old. He was not allowed to meet or speak with his lawyer until after the judgment was
issued, and, during the sessions, his lawyer was not allowed to respond to the prosecution
and could only submit notes to the court.
34.
Since his arrest, Mr. Fadhul has suffered from fatigue and extreme psychological
duress. He has experienced severe stomach ache for more than a month and has fractured his
toe from accidentally hitting his foot against the cell door. Mr. Fadhul has reportedly not been
medically examined since his detention, despite his alleged torture, ill-treatment and injured
foot. Being only 16 years old, he is not familiar with his rights as a detainee and refrained
from requesting medical treatment, assuming it would be ignored and also fearing reprisals.
He is carrying out his sentence at the New Dry Dock prison.
35.
Sayed Falah Hasan Naser Mohsen Fadhul (case V) is a Bahraini national born in 2004.
He was a secondary school student aged 15 at the time of his arrest.
36.
On 16 January 2020, at 3 a.m., a large group of armed officers from the Ministry of
the Interior, civilian officers, commandos and military forces reportedly stormed the family
apartment of Mr. Fadhul and told his family that they had an order from the public prosecutor
to search the apartment but did not show any proof of that. They entered Mr. Fadhul’s room,
confiscated his phone, handcuffed him without giving a reason or showing an arrest warrant,
and put him in a white Land Cruiser that was parked outside among the 16 cars belonging to
the arresting forces.
37.
The arresting officers drove him around for a while, but he did not know where they
were as he was blindfolded the whole time. While in the car, a person sitting next to him
asked whether he knew him, and when Mr. Fadhul replied “I do not know you”, he told him,
“I will torture you.” The man was smoking in Mr. Fadhul’s face, and every time Mr. Fadhul
tried to move his head, he would hit his face on the car window.
38.
At 6 a.m. on the same morning, Mr. Fadhul reportedly called his family for a couple
of seconds only and informed them that he was at the Criminal Investigations Department.
He was under interrogation at the Department for 27 days following his arrest and during that
time, he was able to contact his family. However, every time he called them, the interrogators
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ordered him to tell them that he would be returning home the next day, leaving his family
uncertain about his fate and whereabouts. They were only able to meet him once at the Dry
Dock detention centre, one month after his arrest, before visits were suspended due to
COVID-19.
39.
During his 27 days at the Criminal Investigations Department, investigation officers
and their affiliates allegedly beat Mr. Fadhul, insulted him and made obscene remarks with
the intention of extracting confessions from him. However, he did not confess. Mr. Fadhul
reportedly did not go into detail about the interrogation out of consideration for his family’s
feelings. Following his interrogation, he was brought before the public prosecutor and was
then transferred to the Dry Dock detention centre. Throughout the interrogation period, Mr.
Fadhul’s lawyer was not allowed to meet with him or assist him.
40.
On 31 January 2021, Mr. Fadhul was convicted of joining a group or organization for
the purpose of disrupting the law or violating rights and freedoms. He was sentenced to five
years in prison. Although Mr. Fadhul’s lawyer was able to attend the court sessions, she was
not allowed to communicate with him. The source claims that because he did not confess, the
only evidence presented against him in trial consisted of the confessions of other defendants
obtained through torture and duress. Moreover, during the trial, the prosecution presented
photographs of Mr. Fadhul at the peaceful protests in 2011 and 2012. Besides the fact that
his participation in demonstrations is irrelevant to the case and the crimes allegedly
committed, Mr. Fadhul was around eight years old when the photographs were taken.
41.
At only 17 years old, Mr. Fadhul is serving his sentence in building 17 of New Dry
Dock prison, where he reportedly faces constant discrimination for his political views and
opinions. With reference to the old photographs of Mr. Fadhul participating in popular
opposition protests (see above), the source notes that it is likely that the authorities are linking
Mr. Fadhul’s support of the Bahraini political opposition with terrorism, criminalizing his
freedom of political opinion and assembly. The source also notes that in the light of COVID-
19, many prisoners in criminal cases have recently been released for humanitarian reasons,
either through the royal pardon issued on 12 May 2021, on the occasion of Eid Al-Fitr, or
through alternative sentencing decisions issued on 2 and 11 April 2021. Mr. Fadhul’s family
deem that given his young age, he should have been included in the lists of inmates released.
However, the source adds that it was mostly prisoners in criminal cases who were released,
while prisoners of conscience and political prisoners, such as Mr. Fadhul, were generally
excluded.
Summary of alleged violations
42.
The source reiterates that all five individuals were arrested on 16 January 2020
without an arrest warrant and without being given a reason for their arrest. Among the
arresting forces, they all identified officers from the Ministry of the Interior and civilian
officers, while three of the defendants additionally identified “commandos” and “riot
police”.3 Most arresting officers were wearing masks and some of them were armed. All five
defendants were reportedly taken to the Criminal Investigations Department upon their arrest
and were held there for interrogation for a period of time ranging between 27 days and one
month.
43.
According to the case files, all five defendants were reportedly put in pretrial detention
for a period of 60 days, renewable pending investigations, and their pretrial detention was
subsequently extended on 6 February, 6 April and 4 June 2020. The source adds that on 4
June 2020, a report was issued by the Department for Combating Cybercrime, which included
“highlights of the contents of the detainees’ phones”. According to this report, only personal
information relating to the detainees or to their work was found.
44.
All five individuals were allegedly forcibly disappeared. Following their arrest, they
were not allowed to contact their families and/or their families did not know their
whereabouts or fate. During that period, they were allegedly subjected to torture and ill-
3 See footnote 2 above.
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treatment, such as being blindfolded, beaten on sensitive parts of the body, denied medical
care, insulted and humiliated.
45.
Four of the defendants have indicated that they confessed as a result of torture, or were
otherwise forced to sign a statement, the contents of which were unknown to them. While the
fifth defendant did not confess under torture, confessions against him forcibly extracted from
the other defendants were reportedly used as evidence to convict him. The forces identified
as perpetrating the torture were reportedly officers from the Criminal Investigations
Department or from the investigations department at Jau prison. Two defendants reported
being discriminated against because of their religious tradition and their political views,
respectively. Three out of the five defendants are minors and being held in New Dry Dock
prison, while the other two are young adults in their early twenties and currently incarcerated
in Jau prison.
Trial proceedings and sentencing
46.
All five defendants were reportedly interrogated without their lawyers being present
and they were not granted access to their lawyers at any time before the trial proceedings.
Two of them were not permitted to talk to their lawyers during or after the trial, and one of
them reported that his lawyer was not allowed to respond and could only send notes during
the court sessions. Although four of the defendants were present at the hearing, none of them
were permitted to provide evidence or to speak in their own defence and challenge the
evidence presented against them.
47.
On 31 January 2021, the First High Criminal Court convicted all 18 defendants in the
Soleimani Cell case, including the 5 individuals in the present communication, and sentenced
them to varying prison terms ranging from five years to life imprisonment. On 26 April 2021,
the Court of Appeals upheld the judgments against all five individuals.
48.
The Public Prosecution claimed that the defendants formed or joined a terrorist group
funded by the Iranian Revolutionary Guard, with the aim of carrying out terrorist attacks
targeting Bahraini and foreign military bases, conferences, oil pipelines and public figures in
Bahrain. Following the assassination of Iranian General Qasem Soleimani in January 2020,
official newspapers in Bahrain started labelling the alleged terrorist group “the Soleimani
cell”. The prosecution claimed that after the Iranian General’s death, the group decided to
call itself “the Brigade of the Martyr Qasem Soleimani” and to focus its activities in Bahrain
on avenging Soleimani’s death. However, before these claims appeared in the media, the case
papers referred to the court made no mention of Soleimani and most of the crimes allegedly
committed by the defendants dated from between 2017 and 2019.
49.
In its judgment, the court described the defendants, their alleged activities and the
group they supposedly belong to as terrorists in its narration of the facts of the case. It has
thus classified the detainees and their actions as falling under the category of terrorism
without linking the legal acts to the corresponding legal rules.4 The court reportedly evoked
all of the statements and confessions included in the investigation report, the assets and
seizures reports and the witness statements, but disregarded the defendants’ denials. The
source submits that the judgment issued by the court is therefore flimsy as it is based on
unfounded accusations and fails to provide a logical legal reasoning that attributes legal facts
to the relevant legal rules. Moreover, because it classified the defendants as terrorists and
their activities as terrorism, and despite their age,5 the court was able to rely on Law No. 58
(2006) on protecting society from terrorist acts in its sentencing, rather than on the Bahraini
Penal Code,6 the prescribed penalties being harsher under the former7 than under the latter.
4 The source refers to Law No. 58 on protecting society from terrorist acts (2006), art. 2.
5 Three out of the five defendants were minors at the time of arrest.
6 The source notes that the Court did use article 72 of the Penal Code in its determination of the
penalty, but not articles 70 and 73.
7 See Law No. 58, art. 3.
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Legal analysis
50.
The source submits that all five defendants were subjected to enforced disappearance
following their arrest because they were deprived of their liberty against their will by
government officials who failed to disclose their whereabouts or fate.8
51.
The source also submits that all defendants were subjected to unfair trials as they were
arrested without a warrant and without being given a reason for their arrest, were not granted
access to legal counsel before their trial, were interrogated without their lawyers and were
not allowed to present evidence in their own defence. Four of the defendants were reportedly
convicted based on confessions they made under torture and duress and one of them was
convicted based on confessions made by the other defendants extracted through torture. In
all five cases, the prosecution reportedly relied on the confessions as the primary evidence
against the defendants, sometimes invoking other irrelevant evidence as in the case of Mr.
Fadhul (case 5).
52.
The Bahraini authorities have thus reportedly failed to invoke a satisfactory legal basis
to justify the defendants’ arrest or deprivation of liberty and observe the international norms
and guarantees relating to the right to a fair trial enshrined in article 14 of the Covenant and
article 10 of the Universal Declaration of Human Rights. The source adds that because this
violation of international norms, including due process and fair trial rights, is extensive and
widespread across the five individual cases, all cases fall under categories I and III. The
detention of the five defendants is thus allegedly arbitrary and in violation of articles 9 and
14 of the Covenant.
53.
Moreover, the source believes that the deprivation of liberty of Mr. Naser (case 1) and
Mr. Fadhul (case 5) also falls under category V, namely for reasons of discrimination based
on political opinion. Mr. Naser is the grandson of a prominent religious figure in Bahrain and
has previously been arrested for participating in peaceful assemblies around his grandfather’s
house, and pictures of Mr. Fadhul participating in protests from more than nine years ago
were presented as evidence by the prosecution. In both cases, the defendants’ belonging to
or expression of political opposition were factors that contributed to their conviction in an
unrelated case.
54.
All five defendants have allegedly been subjected to torture and ill-treatment in order
to extract confessions that were then used against them in trial. None of the torture claims
were reportedly investigated by the authorities and the victims did not obtain redress nor fair
and adequate compensation. The source submits that the Bahraini authorities have
consequently also violated their obligations under articles 12, 13, 14 and 15 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and under
articles 7 and 10 of the Covenant.
Response from the Government
55.
On 4 June 2021, the Working Group transmitted the allegations from the source to the
Government under its regular communications procedure. The Working Group requested the
Government to provide, by 3 August 2021, detailed information about the current situation
of the five individuals and to clarify the legal provisions justifying their continued detention,
as well as its compatibility with the obligations of Bahrain under international human rights
law, and in particular with regard to the treaties ratified by the State. The Working Group
called upon the Government to ensure the physical and mental integrity of the five individuals
concerned.
56.
In its response of 29 July 2021, the Government explained that the case involved a
total of 18 defendants, including the five individuals who are the subject of the present
opinion. The Government argues that investigations revealed that the fugitive terrorist
members who had joined the Al-Ashtar Brigades, the military arm of the Wafa’ Islamic
Movement, are in constant contact and coordination with elements of the Iranian
Revolutionary Guard, that they receive from them monetary, technical and logistical support,
and that they have contacted several subversive elements within Bahrain through smartphone
8 The source refers to A/HRC/16/48/Add.3, para. 21.
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communication and messaging software and applications. They have recruited some of them
and tasked them to undertake terrorist operations inside the country (see para. 48 above).
57.
The information and investigations reportedly also revealed that terrorist leaders
abroad had issued directives to their members inside Bahrain to quickly carry out several
consecutive terrorist operations before announcing their affiliation to a new terrorist entity
that goes under the name of the Brigades of Martyr Qasem Soleimani (see para. 48 above),
in an attempt to make believe that the Iranian Revolutionary Guard controls the scene in
Bahrain.
58.
In the light of this, the authorities had to take measures and the aforementioned
individuals were thus arrested, based on the authority of law enforcement officers enshrined
in article 27 of Law No. 58 of 2006 regarding the protection of society from terrorist acts.
They were brought before the Public Prosecution which interrogated them on 6 and 7
February 2020.
59.
The Government argues that the General Directorate of Investigation and Criminal
Evidence arrested all the accused on 16 January 2020 on the basis of an arrest warrant dated
14 January 2020 issued pursuant to Law No. 58 of 2006 and its amendments.
60.
Based on the permission of the Public Prosecution, three explosive devices,
detonators, materials and tools used in the manufacture of explosives were seized in the house
of Mr. Husain.
61.
The Public Prosecution charged the defendants with joining and financing a terrorist
group, possessing and acquiring explosive materials without a licence in order to fulfil a
terrorist purpose, receiving and providing training on how to use weapons and manufacture
explosives, attempting to detonate explosives in the execution of a terrorist objective and
possessing flammable devices. The Prosecution ordered the pretrial detention of nine of the
defendants pending investigation. After the investigation procedures were completed, the
case was referred to the High Criminal Court.
62.
On 31 January 2021, the first High Criminal Court sentenced eight defendants to life
imprisonment, two defendants to 15 years’ imprisonment, two defendants to 10 years’
imprisonment, one defendant to 7 years’ imprisonment and five defendants to five years’
imprisonment, and ordered the confiscation of all items seized.
63.
The aforementioned defendants appealed the judgment, and on 24 April 2021, the
Court of Appeal rejected the appeal and upheld the contested judgment.
64.
Each inmate undergoes a medical examination in cooperation with the Department of
Health and Social Affairs at the Ministry of the Interior and receives the necessary health and
medical care. All the five individuals to whom the present opinion relates have regular and
frequent medical visits and are generally in good health.
65.
The General Directorate of Reform and Rehabilitation and all its centres are making
efforts to grant all inmates and detainees, including the aforementioned inmates, all their
rights as stipulated in the Reform and Rehabilitation Institution Law No. 18 of 2014 and its
executive regulations. No inmate or detainee is placed in such centres except on the basis of
a written order issued by the legally competent authority within the period specified in the
order.
66.
The Government notes that Mr. AlJamri spent a week in solitary confinement in the
Dry Dock prison (see para. 19 above) and was transferred to the new building 17, where he
serves his sentence. The disciplinary penalty was applied to him at that time, following his
violation of the law and the regulations of the centre, within the legal controls governing
disciplinary sanctions.
67.
Regarding the right to family contact, the Government argues that the allegations
concerning the cutting off of modes of communication between the accused and their families
are untrue. Between 16 January and 5 February 2020, each of the five individuals made an
average of eight calls to their family.
68.
The Government adds that allowing the accused to communicate with their family is
one of the most important rights stipulated by domestic law, which allows detainees, upon
A/HRC/WGAD/2021/84
10
detention, the right to contact their relatives to inform them of what has happened and to seek
the assistance of a lawyer. Accordingly, the proceedings conducted by the competent
authority are a sound legal procedure, as they were arrested in accordance with a valid arrest
warrant and allowed to communicate with their relatives and inform them of their
whereabouts, so the allegations of their enforced disappearance, deprivation of
communication after their arrest, and prevention of them informing their family of their
whereabouts and well-being are baseless and false.
69.
In addition, a foreign inmate is granted the right to contact their embassy or diplomatic
or consular representative. The Department of Reform and Rehabilitation of Inmates is keen
to grant this right to all the aforementioned, as all of them were able to communicate visually
with their families as an alternative to a visit, coinciding with the precautionary measures
taken in the face of the COVID-19 pandemic.
70.
Regarding the allegations that the Ministry of the Interior prohibited Mr. AlJamri from
appointing a lawyer, all inmates enjoy the rights stipulated in the Reform and Rehabilitation
Institution Law No. 18 of 2014. Accordingly, if the inmate wishes to appoint a lawyer, or if
one of the lawyers submits an authorization for any inmate, each of them is allowed to
complete these procedures.
71.
Addressing the allegation that Mr. AlJamri suffers constant discrimination on the
basis of his religious beliefs (see para. 18 above), the General Directorate of Reform and
Rehabilitation ensures that inmates and detainees practice their religious rites without
exception or discrimination and in accordance with the Reform and Rehabilitation Institution
Law.
72.
Coinciding with the occasion of Ashura, inmates and those held in pretrial detention
are allowed to practice the religious rites of this occasion in a manner that ensures calm and
tranquillity, without disturbing the public order as legally prescribed.
73.
The Government notes the allegations that many prisoners convicted in criminal cases
were released in the light of the COVID-19 pandemic, while prisoners of conscience and
political prisoners such as Mr. Fadhul (case 5) were generally excluded from benefiting from
alternative sentences (see para. 41 above). The Government notes that Law No. 18 of 2017
on alternative penalties and measures clarifies the legal conditions that must be met for the
possibility of replacing the penalty, and when those conditions are met, the competent
authority puts the provisions of the law into effect and the penalty is replaced.
74.
Bahrain has always been keen to enshrine the principle of respect for human rights,
represented by all the rights and freedoms enjoyed by every individual and stipulated in
several international or local legal documents, as well as the consolidation of justice and the
rule of law. The Ministry of the Interior is keen to respect all the rights of inmates, whether
they are rights emanating from the Constitution, from international treaties and agreements,
or from national laws and, in the event that a judicial officer exceeds his limits, rendering his
act a violation of the rights and freedoms of others, independent monitoring bodies
investigate such allegations.
75.
In conjunction with the spread of the COVID-19 pandemic and in order to preserve
the health of inmates and workers in the reform and rehabilitation centres, the pace of efforts
taken in this regard has doubled.
76.
Noting all the above, the Government concludes that the legal measures taken against
the inmates were sound and consistent with what was stipulated in the legal principles,
whether local or international, and that the allegations of arbitrary detention and violation of
international treaties and international humanitarian law are merely claims that have nothing
to do with reality.
Additional comments from the source
77.
On 30 July 2021, the Government’s reply was transmitted to the source for its further
comments. In its response of 12 August 2021, the source reiterates the conclusions made in
its previous submission. It adds that the Government’s response fails to address several
serious violations and issues. As for the accusations that it does tackle, the Government’s
response is often unsatisfactory or too vague to dismiss accusations of legal violations.
A/HRC/WGAD/2021/84
11
Discussion
78.
The Working Group thanks the source and the Government for their timely
submissions.
79.
In determining whether the deprivation of liberty of the five individuals is arbitrary,
the Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case for breach of the
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.9
80.
The Working Group reaffirms that States have the obligation to respect, protect and
fulfil all human rights and fundamental freedoms, including the liberty of persons, and that
any national law allowing deprivation of liberty should be made and implemented in
conformity with the relevant international standards set forth in the Universal Declaration of
Human Rights, the Covenant, the Convention again Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, and other applicable international and regional
instruments.10 Consequently, even if the detention is in conformity with national legislation,
regulations and practices, the Working Group is entitled and indeed obliged to assess the
circumstances of the detention and the law itself to determine whether such detention is also
consistent with the relevant provisions of international human rights law.11
81.
In the present case, the source argues that the detention of the five individuals is
arbitrary and falls under categories I, III and V. In its response, the Government denies these
allegations. The Working Group will proceed to examine the allegations in turn.
i.
Category I
82.
The source submits that all five individuals were arrested on 16 January 2020 without
an arrest warrant and without being given a reason for their arrest. In its response, the
Government asserts that on the basis of intelligence information (see paras. 56 and 57 above),
it had to take measures which resulted in the arrest of the five individuals on 16 January 2020
on the basis of an arrest warrant dated 14 January 2020 issued pursuant to Law No. 58 of
2006. The individuals were presented before the Public Prosecution, which interrogated them
on 6 and 7 February 2020.
83.
The Working Group recalls that international law on detention 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 under articles 3 and 9 of the
Universal Declaration of Human Rights, article 9 of the Covenant and principles 2, 4 and 10
of the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.12
84.
According to article 9 (1) of the Covenant, no one shall be deprived of liberty except
on such grounds and in accordance with such procedures as are established by law.
Article 9 (2) provides that anyone who is arrested shall be informed, at the time of arrest, of
the reasons for the arrest and shall be promptly informed of any charges.
85.
The Working Group notes that while the source maintains that no arrest warrant was
issued to any of the five individuals, the Government states that an arrest warrant, dated 14
January 2020, in respect of the arrests was produced. The Working Group finds no basis to
disbelieve the narrative of the Government in this regard. In fact, the Working Group sees no
contradiction between the position of the source and that of the Government regarding the
9 A/HRC/19/57, para. 68.
10 See, for example, opinions No. 14/2020, para. 45, and No. 32/2020, para. 29.
11 Ibid.
12 The Working Group has maintained from its early years that the practice of arresting persons without
a warrant renders their detention arbitrary. For more recent jurisprudence, see for example, opinions
No. 33/2020, para. 54, and No. 34/2020, para. 46.
A/HRC/WGAD/2021/84
12
existence or otherwise of an arrest warrant in respect of each of the five individuals. What
the Working Group sees is an information gap, namely whether the arrest warrant was
actually presented to the individuals at the time of their respective arrests.
86.
The Working Group understands the obligation in relation to arrest and detention as
being in the presentation of an arrested person with an arrest warrant rather than the mere
preparation of a warrant by the arresting authorities. A warrant which is prepared but not
shown to the person arrested is ineffective as it fails to serve its purpose.
87.
The Working Group has found in recent cases concerning Bahrain that an arrest
warrant and reasons for the arrest were not provided at the time of arrest, and that prompt
notification was not provided of the charges, which suggests that the failure to comply with
arrest procedures is a systemic problem.13
88.
In this case, the Working Group notes that while the Government maintained in its
response that a warrant of arrest was prepared and dated, it left unaddressed the source’s
claim that the warrant was not presented at the time of arrest. Having 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 to refute the allegations. It has
failed to do so in this case.
89.
In failing to present an arrest warrant, to provide reasons for the arrest and to ensure
prompt notification of the charges, the authorities did not establish a legal basis for the arrest
of the five individuals. This makes the arrest and detention of the five individuals arbitrary
under category I.
90.
The source also alleges that all five defendants were taken to the Criminal
Investigations Department upon their arrest and held there for interrogation for periods of
time ranging between 27 days and one month. The Government denies these allegations,
maintaining that they were arrested on 16 January 2020 and referred to the Public
Prosecution, which interrogated them on 6 and 7 February 2020. The Government does not,
however, explain the whereabouts of the five individuals from the time they were arrested on
16 January 2020 until the time they were presented to the Public Prosecution on 6 February
2020, a period of about 22 days. The Government did not refer to the time the five individuals
spent at the Criminal Investigations Department.
91.
According to article 9 (3) of the Covenant, anyone arrested or detained on a criminal
charge shall be brought promptly before a judge. As the Human Rights Committee has stated,
48 hours is ordinarily sufficient to satisfy the requirement of bringing a detainee “promptly”
before a judge following the arrest and any longer delay must remain absolutely exceptional
and be justified under the circumstances.14 In the present case, the Government did not meet
this requirement and it did not provide any justification for the delay. 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. 15 The delay was
particularly serious in the case of Messrs. AlJamri, Sayed Redha Fadhul and Sayed Falah
Fadhul, who were all minors at the time of their arrest. A strict standard of promptness applies
to minors, who should be brought before a court within 24 hours of arrest.16 The failure to
bring the three minors promptly before a judicial authority violated article 37 (d) of the
Convention on the Rights of the Child.
92.
Furthermore, the source alleges that all five individuals were subjected to enforced
disappearance following their arrests as they were not allowed to contact their families and/or
their families did not know their whereabouts or fate. Although the Government, in its
response, states that these allegations are baseless and false, it does not substantiate its
assertions any further in order to refute such allegations. It would indeed appear that the five
13 See, inter alia, opinions No. 73/2019, No. 5/2020 and No. 41/2020.
14 Human Rights Committee, general comment No. 35 (2014), para. 33.
15 Ibid., para. 32; opinions No. 14/2015, para. 28, and No. 5/2020, para. 72.
16 Human Rights Committee, general comment No. 35 (2014), para. 33; opinions No. 5/2020, para. 72,
and No. 41/2020, para. 60; and Committee on the Rights of the Child, general comment No. 24
(2019), para. 90.
A/HRC/WGAD/2021/84
13
individuals were deprived of their liberty against their will by government officials who
refused to disclose their fate and whereabouts. 17 The Working Group is in these
circumstances inclined to accept the assertion of the source that the five individuals were
subjected to enforced disappearance, which contravened articles 9 and 14 of the Covenant,
and constitute a particularly aggravated form of arbitrary detention.18 The Working Group
notes that they 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.19 The Working
Group will refer this case to the Working Group on Enforced or Involuntary Disappearances.
93.
In addition, the information provided by the source indicates that the individuals were
held incommunicado at the initial stages of their detention, and none of them appear to have
been able to challenge their detention in accordance with article 9 (4) of the Covenant. As
the Working Group has argued, holding persons with 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 Covenant20 and article 37 (d)
of the Convention on the Rights of the Child. Judicial oversight of the deprivation of liberty
is a fundamental safeguard of personal liberty and is critical in ensuring that detention has a
legal basis.21 Given that the five individuals were held incommunicado and were therefore
unable to challenge their detention, 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.
94.
Lastly, the five individuals were prosecuted under Law No. 58 of 2006 on the
protection of society from terrorist acts, a law that the Human Rights Committee has found
to include an overly broad definition of terrorism. The Working Group has also determined
that the provision is overly vague and broad.22 The application of vague and overly broad
provisions in this case adds to the Working Group’s conclusion that the detentions were
without legal basis.
95.
Consequently, the Working Group finds that the Government failed to establish a legal
basis for the detention of the five individuals. Their detentions were thus arbitrary under
category I.
ii.
Category III
96.
The source submits that the individuals were not granted access to legal counsel before
their trial and were all interrogated in the absence of their lawyers. Some also faced
restrictions during and after the trial (see para. 46 above). Although four of the accused
persons were present at the hearing, none of them were reportedly permitted to provide
evidence or to speak in their own defence and challenge the evidence presented against them.
97.
In responding to these allegations, the Government states that all inmates enjoy the
rights stipulated in the Reform and Rehabilitation Institution Law No. 18 of 2014. Lawyers
are thus allowed to visit their detained clients in full view but out of hearing of the authorities.
However, the Government’s response is generic and has not specifically addressed the claims
of the source in this regard. In any case, the existence of the law does not guarantee any
practical implementation of it. The Working Group is thus inclined to accept the source’s
assertion on this issue.
98.
The Working Group recalls that all 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 their apprehension.23 A detainee has the right to have “prompt access” to
legal counsel, which means that a lawyer is granted the right to have private communication
17 A/HRC/16/48/Add.3, para. 21.
18 Human Rights Committee, general comment No. 35 (2014), para. 17, and opinion No. 5/2020, para.
74.
19 CCPR/C/BHR/CO/1, paras. 35–36; opinions No. 59/2019, para. 50, and No. 5/2020, paras. 73–74.
20 See opinions No. 45/2017, No. 33/2019 and No. 45/2019.
21 A/HRC/30/37, para. 3.
22 CCPR/C/BHR/CO/1, para. 29, and opinions No. 59/2019, para. 60, and No. 5/2020, para. 76.
23 Basic Principles and Guidelines on Remedies and Procedures on the Right of Persons Deprived of
Their Liberty to Bring Proceedings Before a Court, principle 9 and guideline 8.
A/HRC/WGAD/2021/84
14
and meetings with the detainee and to attend all investigations without interference or
restrictions.24 Furthermore, a detainee ought to have access to “effective counsel.”25 The
effectiveness of the legal counsel is fundamentally related to the principle of equality of arms,
as enshrined in article 11 of the Universal Declaration of Human Rights.
99.
In the Working Group’s view, the Government failed to respect the right of the five
individuals to legal assistance at all times, which is inherent in the right to liberty and security
of the person, and 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 and 14 of the Covenant and principles 15,
17 and 18 of the Body of Principles. There was also a violation of the rights of Messrs.
AlJamri, Sayed Redha Fadhul and Sayed Falah Fadhul as minors to prompt access to legal
assistance under article 37 (d) of the Convention on the Rights of the Child and to legal
assistance in the preparation of their defence and a fair hearing in the presence of legal
assistance under articles 40 (2) (b) (ii) and (iii) of the same Convention.
100.
The Working Group also considers that this violation substantially undermined and
compromised the capacity of the five individuals to defend themselves in any subsequent
judicial proceedings.26
101.
The source further alleges that all five individuals were subjected to torture and ill-
treatment in order to extract confessions which were then used against them at their trial.
Four of the accused have indicated that they confessed as a result of torture, or were otherwise
forced to sign a statement, the contents of which were unknown to them. While the fifth
defendant did not confess under torture, confessions against him forcibly extracted from the
other defendants were reportedly used as evidence to convict him. Such torture and ill-
treatment allegedly included being blindfolded, beaten on sensitive parts of the body, denied
medical care, insulted and humiliated. None of the claims of torture were reportedly
investigated by the authorities and the victims did not obtain redress or fair and adequate
compensation.
102.
The Government, in its response, states that the treatment of the inmates was
consistent with stipulations of legal principles, both local and international, and that the
allegations of the State party’s violation of the various treaties and international humanitarian
law are false. Granted the specific instances of alleged torture that is said to have been
inflicted on the persons involved, as recounted by the source, the Working Group finds the
Government’s general denial unconvincing. In consequence, the Working Group is of the
view that the Government has not effectively rebutted the allegations.
103.
The Working Group thus considers that the source has presented a credible prima
facie case that the five individuals were subjected to torture and ill-treatment, resulting in
forced confessions,27 in violation of the absolute prohibition of torture as a peremptory norm
of international law, as well as of article 5 of the Universal Declaration of Human Rights,
article 7 of the Covenant and articles 2 and 16 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. Moreover, the Working Group
received credible allegations that the three minors had been tortured, contrary to articles 37
(a) and (c) of the Convention on the Rights of the Child. The use of physical or psychological
force on a child is an extremely serious abuse of power.28 The alleged torture and ill-treatment
must be subject to a thorough and independent investigation.
104.
The Working Group also considers that the source’s claims about forced confessions
are credible. The Government has not addressed the alleged absence of legal counsel during
the interrogations when such confessions were made. Confessions made in the absence of
legal representation are not admissible as evidence in criminal proceedings.29 Further, the
24 A/HRC/45/16, paras. 50–55.
25 See, in particular, principle 2 of the Basic Principles on the Role of Lawyers.
26 See also Human Rights Committee, general comment No. 32 (2007), para. 34.
27 CAT/C/BHR/CO/2-3, paras. 8 and 16–17.
28 Opinions No. 73/2019, para. 90, and No. 5/2020, para. 80.
29 Opinions No. 59/2019, para. 70, and No. 73/2019, para. 91; and E/CN.4/2003/68, para. 26 (e). See
also Committee on the Rights of the Child, general comment No. 24 (2007), para. 60.
A/HRC/WGAD/2021/84
15
admission into evidence of a statement allegedly obtained through torture or ill-treatment
renders the entire proceedings unfair, regardless of whether other evidence was available to
support the verdict.30 The burden is on the Government to prove that statements were given
freely,31 but it has not done so.
105.
As a result, right of the five individuals to be presumed innocent under article 14 (2)
of the Covenant and, in the case of the three minors, under article 40 (2) (b) (i) of the
Convention on the Rights of the Child, was violated. Their right not to be compelled to
confess guilt under article 14 (3) (g) of the Covenant and article 40 (2) (b) (iv) of the
Convention on the Rights of the Child was also violated. The intentional infliction of pressure
to obtain a confession further violates articles 2, 13, 15 and 16 of the Convention against
Torture.32 The Working Group refers this case to the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment.
106.
In addition, the Working Group notes that the five individuals were sentenced in a
mass trial of 18 defendants on 31 January 2021. As the Working Group has recently
emphasized, mass trials are incompatible with the interests of justice and do not meet the
standards of a fair trial, given that it is impossible during such proceedings to conduct a
specific assessment of individual responsibility.33 The Working Group is not convinced that
it was possible for all defendants in such a large trial to receive an individualized assessment
of their culpability beyond reasonable doubt, in violation of article 14 (1) of the Covenant.
107.
The Working Group thus concludes that the violations of the fair trial rights of the
five individuals were of such gravity, as to render their detention arbitrary, falling under
category III.
iii.
Category V
108.
The source has submitted that the deprivation of liberty of Mr. Naser (case 1) and Mr.
Sayed Falah Fadhul (case 5) also falls under category V, namely for reasons of discrimination
based on political opinion. Mr. Naser is the grandson of a prominent religious figure in
Bahrain and has previously been arrested for participating in peaceful assemblies around his
grandfather’s house, and pictures of Mr. Fadhul participating in protests from more than nine
years ago were presented as evidence by the prosecution. In both cases, the defendants’
belonging to or expression of political opposition were factors that contributed to their
conviction in an unrelated case.
109.
In the absence of any explanation from the Government, the Working Group
concludes that Mr. Naser and Mr. Sayed Falah Fadhul were detained for reasons of
discrimination based on political opinion. In these circumstances, the Working Group finds
that the Government has violated articles 2 and 7 of the Universal Declaration of Human
Rights and articles 2 (1) and 26 of the Covenant, and that their detention is also arbitrary
under category V.
Concluding remarks
110.
The Working Group is concerned about the physical and psychological health of the
five individuals. Some of them have ongoing health issues that require treatment. The
Working Group urges the Government to immediately and unconditionally release all five
individuals and ensure that they receive medical care.
111.
According to the source, the authorities restricted the ability of the individuals to
contact their families during their initial detention. Although the Government argues that
these allegations are untrue (see paras. 68–69 above), the Working Group reminds the
Government that any restrictions on family contact violate principles 15, 16 (1) and 19 of the
Body of Principles, rules 43 (3) and 58 (1) of the United Nations Standard Minimum Rules
30 Opinions No. 59/2019, para. 70, and No. 73/2019, para. 91.
31 Human Rights Committee, general comment No. 32 (2007), para. 41.
32 CAT/C/BHR/CO/2-3, para. 16.
33 Opinions No. 5/2020, para. 86, and No. 41/2020, para. 73.
A/HRC/WGAD/2021/84
16
for the Treatment of Prisoners (the Nelson Mandela Rules) and article 37 (c) of the
Convention on the Rights of the Child.
112.
The defendants in this case, including the three minors, have been sentenced to prison
terms ranging from five years to life imprisonment and the Working Group notes with
concern that these heavy sentences were not directed at reintegrating them.34
113.
The present case is one of several brought before the Working Group in recent years
concerning arbitrary detention in Bahrain. 35 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.36
114.
The Working Group would welcome the opportunity to engage constructively with
the Government through a country visit.
Disposition
115.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Ali Hasan Mansoor Yusuf Marzooq AlJamri, Ali
Mohamed Hasan Ali Husain and Sayed Redha Baqer Mahdi Mohsen Fadhul, being in
contravention of articles 3, 6, 8, 9, 10 and 11 of the Universal Declaration and
articles 2 (3), 9, 10, 14 and 16 of the Covenant, is arbitrary and falls within categories
I and III.
The deprivation of liberty of Ali Naser Ahmed Naser and Sayed Falah Hasan Naser
Mohsen Fadhul, being in contravention of articles 2, 3, 6, 7, 8, 9, 10 and 11 of the
Universal Declaration of Human Rights and articles 2 (3), 9, 10, 14, 16 and 26 of the
Covenant, is arbitrary and falls within categories I, III and V.
116.
The Working Group requests the Government of Bahrain to take the steps necessary
to remedy the situation of the five individuals 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 Covenant.
117.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release the five individuals immediately and accord
them an enforceable right to compensation and other reparations, in accordance with
international law. In the current context of the global 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 unconditional release.
118.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of the five
individuals and to take appropriate measures against those responsible for the violation of
their rights.
119.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Working Group on Enforced or Involuntary Disappearances and the
Special Rapporteur on torture, for appropriate action.
120.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
121.
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 the five individuals have been released and, if so, on what date;
34 See article 14 (4) of the Covenant and article 40 (1) of the Convention on the Rights of the Child.
35 See, inter alia, opinions No. 6/2012, No. 73/2019, No. 5/2020 and No. 41/2020.
36 Opinion No. 47/2012, para. 22.
A/HRC/WGAD/2021/84
17
(b)
Whether compensation or other reparations have been made to the five
individuals;
(c)
Whether an investigation has been conducted into the violation of the rights of
the five individuals 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.
122.
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.
123.
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.
124.
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.37
[Adopted on 19 November 2021]
37 Human Rights Council resolution 42/22, paras. 3 and 7.