Opinion; Subjects: UNITED ARAB EMIRATES, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.23-08052 (E) 040523 040523
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety sixth session, 27 March–5 April 2023
Opinion No 19/2023 concerning Omran Ali Hasan al-Radwan al-
Harithi, Abdullah Abdulqader Ahmad Ali al-Hajiri, Ahmed Yousef
Abdullah al-Zaabi, Mohammed Abdulrazzaq Mohammed al-Siddiq,
Husain Moneif al-Jabri, Hasan Moneif al-Jabri, Sultan Bin Kayed
Mohammed al-Qasimi, Khalifa Hilal Khalifa Hilal al-Nuaimi, Ibrahim
Ismail Ibrahim al-Yasi, Mohammed Abdullah al-Roken, Abdulsalam
Mohammed Darwish al-Marzooqi and Fouad Mohammed Abdullah
Hasan al-Hmadi (United Arab Emirates)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work,1 on 7 December 2022 the Working Group
transmitted to the Government of United Arab Emirates a communication concerning the 12
individuals named above. The Government has not replied to the communication. The State
is not a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/19
General Assembly
Distr.: General
5 May 2023
Original: English
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(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
Submissions
Communication from the source
4.
The present case concerns 12 nationals of the United Arab Emirates:
(1)
Omran Ali Hasan al-Radwan al-Harithi was arrested on 16 July 2012,
sentenced to seven years’ imprisonment and completed his sentence in July 2019 but
remains detained;
(2)
Abdullah Abdulqader Ahmad Ali al-Hajiri is an Emirati citizen who was
arrested on 16 July 2012, as part of the UAE94 mass trial, was sentenced to seven
years’ imprisonment and completed his sentence in July 2019 but remains detained;
(3)
Ahmed Yousef Abdullah al-Zaabi is an Emirati university professor was
arrested on 26 March 2012, as part of the UAE94 mass trial, was sentenced to 10
years’ imprisonment and completed his sentence in March 2022 but remains detained;
(4)
Mohammed Abdulrazzaq Mohammed al-Siddiq2 is an Emirati citizen who was
arrested on 9 April 2012, as part of the UAE94 mass trial, was sentenced to 10 years’
imprisonment and completed his sentence in April 2022 but remains detained;
(5)
Husain Moneif al-Jabri is an Emirati citizen who was arrested on 9 April 2012,
as part of the UAE94 mass trial. He was sentenced to 10 years’ imprisonment and
completed his sentence in April 2022 but remains detained;
(6)
Hasan Moneif al-Jabri is currently stateless as his Emirati citizenship was
revoked. He was arrested on 9 April 2012, as part of the UAE94 mass trial and was
sentenced to 10 years’ imprisonment. He completed his sentence in April 2022 but
remains detained;
(7)
Sultan Bin Kayed Mohammed al-Qasimi is an Emirati citizen who was arrested
on 20 April 2012, as part of the UAE94 mass trial and was sentenced to 10 years’
imprisonment. He completed his sentence in April 2022 but remains detained;
(8)
Khalifa Hilal Khalifa Hilal al-Nuaimi3 is an Emirati citizen, who was arrested
on 16 July 2012, as part of the UAE94 mass trial. He was sentenced to 10 years’
imprisonment. He completed his sentence in July 2022 but remains detained;
(9)
Ibrahim Ismail Ibrahim al-Yasi4 is an Emirati citizen, who was arrested on 16
July 2012, as part of the UAE94 mass trial. He was sentenced to 10 years’
imprisonment. He completed his sentence in July 2022 but remains detained;
(10)
Mohammed Abdullah al-Roken is an Emirati lawyer and the former president
of the Emirates Jurists Association. He was arrested on 17 July 2012, as part of the
UAE94 mass trial and was sentenced to 10 years’ imprisonment. He completed his
sentence in July 2022 but remains detained;
(11)
Abdulsalam Mohammed Darwish al-Marzooqi is an Emirati educator born on
19 December 1970. He was arrested on 24 July 2012, as part of the UAE94 mass trial
2 Also known as Mumammad Abdulrazzaq al-Abdouly (see opinion No. 60/2013).
3 Also known as Khalifa Hillel (see opinion No. 60/2013).
4 Also known as Ibrahim Ismail al-Yaqoub (see opinion No. 60/2013).
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and was sentenced to 10 years’ imprisonment. He completed his sentence in July 2022
but remains detained;
(12)
Fouad Mohammed Abdullah Hasan al-Hmadi is an Emirati citizen, who was
arrested on 31 July 2012, as part of the UAE94 mass trial. He was sentenced to ten
years’ imprisonment. He completed his sentence in July 2022 but remains detained.
Context
5.
According to the source, in March 2011, after a group of 133 Emirati academics,
judges, lawyers, students and human rights defenders signed a petition addressed to the
President of the United Arab Emirates and the country’s Federal Supreme Council calling for
democratic reforms, the State Security Apparatus initiated a campaign of arrests against the
individuals who had signed the document. It subjected those arrested to secret and prolonged
incommunicado detention and severe acts of torture. The arrested individuals were later
sentenced in the largest ever mass trial held in the United Arab Emirates, known as UAE94,
before the Federal Supreme Court. In July 2013, the Emirati authorities convicted 61 of the
94 defendants, in addition to 8 individuals in absentia, on counter-terrorism and cybercrime
charges.
6.
The source recalls that the Working Group on Arbitrary Detention issued opinion No.
60/2013, in which it found that the detention of the 61 individuals convicted in the UAE94
trial was arbitrary. The 12 individuals named above were among the 61 individuals who were
arbitrarily detained.
7.
According to the source, not long after opinion No. 60/2013 was adopted, on 31
August 2014 Federal Law No. 7/2014 for the purpose of countering terrorism (the Counter-
Terrorism Law) was promulgated in the United Arab Emirates. This law provides for the
detention of individuals in munasaha centres on the basis that they appear to pose a terrorism
threat. According to article 1 of the Counter-Terrorism Law, munasaha centres are:
“Administrative units aiming at the enlightenment and reform of persons deemed to pose
terrorist threat or those convicted of terrorist offences.” The functioning of such centres was
further regulated on 4 September 2019, when a law was issued, by decree, providing for the
establishment of a national munasaha centre (the Munasaha Centre Law). According to the
source, in article 4 (2) of that law, the mandate of the national munasaha centre exceeds that
set out under the Counter-Terrorism Law and includes “the counselling and rehabilitation of
holders of terrorist, extremist or deviant thought”. The decision to place someone in a
munasaha centre or to continue their detention under the munasaha regime are made by the
State Security Prosecutor who has to file a request before the State Security Chamber of the
Abu Dhabi Court of Appeal.5 Such decisions can only be challenged at the State Security
Chamber of the Federal Supreme Court.
8.
The source submits that all 12 individuals have completed their sentences, yet they
remain in detention under the munasaha regime, whereby the Emirati authorities have
extended their detention indefinitely under the pretext of “rehabilitation needs”. For the
reasons set out below, their continued detention, despite the completion of their sentences, is
arbitrary.
9.
Only Mr. al-Hmadi and Mr. al-Marzooqi were able to challenge the court’s decision
that they be placed in munasaha centres following the completion of their sentences. They
were only provided with access to legal counsel after the initial decision to place them in
munasaha centres was issued and they were set to appear before the State Security Chamber
of the Federal Supreme Court on 22 September 2022.
Analysis of violations
i.
Category I
10.
The source submits that the detention of the 12 individuals is arbitrary as it does not
respect the principle of non-retroactivity of criminal laws, nor the principle of legality. The
5 The source refers to articles 1 and 9 of the Munasaha Centre Law.
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12 individuals are currently detained under the munasaha regime, regulated by the Counter-
Terrorism Law and the Munasaha Centre Law, which were enacted in 2014 and 2019
respectively. They were convicted during the UAE94 trial, which took place in July 2013,
before the enaction of those laws. Consequently, their placement under the munasaha regime
was not ordered at the time of their conviction but at the expiry of their sentence, some six to
nine years after their conviction. In that regard, their cases have close similarities to the cases
considered in communications 1629/20076 and 1635/2007,7 in which the Human Rights
Committee found that the placement of the individuals concerned upon the expiry of their
sentences in a preventive detention regime based on legislation enacted after their conviction
made their detention arbitrary.8
11.
The source argues that in the present case, the 12 individuals have already served their
respective terms of imprisonment and yet they continue to be subjected to imprisonment in
pursuance of a law that characterizes their continued incarceration under the same prison
regime as detention, even though their initial sentence did not include any preventive order.
This purported detention amounts, in substance, to a fresh term of imprisonment which,
unlike detention proper, is not permissible in the absence of a conviction for which
imprisonment is a sentence prescribed by law.
12.
The source notes that imprisonment is penal in character and may only be imposed on
conviction for an offence in the same proceedings in which the offence is tried. The continued
imprisonment of the 12 individuals under the munasaha regime was the result of a decision
of the State security prosecution, years after their conviction, in respect of predicted future
criminal conduct, which had its basis in the offences for which they had already served their
sentence. The source argues that their current detention is the result of fresh proceedings,
although nominally characterized as a counselling programme (and thus administrative in
nature), and falls within the prohibition of retroactive application of criminal laws (nullem
crimen sine lege). Since the basis of the detention lies in the Counter-Terrorism Law and the
Munasaha Centre Law, both of which were enacted after the convictions in 2013, the source
states that the Counter-Terrorism Law and the Munasaha Centre Law are being retroactively
applied.
13.
Furthermore, according to the source, those two laws, on which the detention of the
12 individuals is based, are problematic, as they contain imprecise and ambiguous definitions
that defy the principle of legal certainty, prescribed in article 11 of the Universal Declaration
of Human Rights. This principle “requires that criminal laws are sufficiently precise so it is
clear what types of behaviour and conduct constitute a criminal offense and what would be
the consequence of committing such an offense. This principle recognizes that ill-defined
and/or overly broad laws are open to arbitrary application and abuse.”9
14.
The source submits that in this regard, according to the Counter-Terrorism Law and
the Munasaha Centre Law, a person can be detained at a munasaha centre on the grounds
that they (a) appear to pose a terrorist threat10 or (b) were registered to undertake a counselling
programme, further to an application by said person or their guardian, but failed or refused,
without justification, to complete the programme.11 The definition of posing a terrorism threat
is set out in article 40 (1) of the Counter-Terrorism Law, which establishes that: “A person
shall be deemed as posing a terrorist threat if said person adopts extremist or terrorist
ideology to the extent that he/she seems likely to commit a terrorist offence.” However, the
law is vague as to the threshold at which a person will be deemed “likely” to commit a
terrorist offence, nor is it clear how likelihood is assessed.
6 Fardon v. Australia (CCPR/C/98/D/1629/2007).
7 Tillman v. Australia (CCPR/C/98/D/1635/2007).
8 The source notes that while these cases concern the application of the Covenant on Civil and Political
Rights, to which the United Arab Emirates is not a party, the Committee lays out in them some
important principles to prevent arbitrary detention.
9 Special procedures communication OL ARE 6/2020, p. 2, available from
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25663.
10 The source refers to article 40 (2) of the Counter-terrorism Law and article 8 of the Munasaha Centre
Law.
11 The source refers to article 10 of the Munasaha Centre Law.
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15.
Furthermore, the source submits that the definition of a terrorist offence is equally
vague and does not assist in the interpretation of these provisions. In accordance with article
1 of the Counter-Terrorism Law, a terrorist offence is defined as every criminal action or
inaction criminalized under the Counter-Terrorism Law and every action or inaction
constituting a felony or misdemeanour referred to in any other law, if committed for a terrorist
purpose. This article is problematic as it does not define terrorism itself, but instead refers to
the term terrorist purpose, the definition of which then refers to a terrorist result. This means
that these definitions “essentially remain undefined, as one definition refers or defers to
another without clearly providing a concrete and constrained definition of the activities they
encompass”.12
16.
The source recalls that the former Special Rapporteur on the independence of judges
and lawyers noted that the Counter-Terrorism Law contained vague and broad definitions of
criminal offences, in contravention of international human rights standards and defying the
principle of legality. 13 In 2020, multiple special procedure mandate holders expressed
concern over the fact that the wording of the criminal provisions included in that legislation
was sometimes imprecise and ambiguous, to the point that it might undermine the principle
of legal certainty. This uncertainty led the Committee against Torture to recommend “that
detentions in munasaha centres be based on clear and identifiable criteria established by
law”.14
17.
The source argues that while such identifiable criteria are lacking, the principle of
legality is not respected and thus the detention of individuals under this regime, as is the case
of the individuals in question here, is arbitrary. In that regard, the Human Rights Committee
noted that: “An arrest or detention may be authorized by domestic law and nonetheless be
arbitrary. The notion of ‘arbitrariness’ is not to be equated with ‘against the law’, but must
be interpreted more broadly to include elements of inappropriateness, injustice, lack of
predictability and due process of law”.15 The Committee further stated that: “Any substantive
grounds for arrest or detention must be prescribed by law and should be defined with
sufficient precision to avoid overly broad or arbitrary interpretation or application.”16
ii.
Category II
18.
The source submits that the Working Group on Arbitrary Detention in its opinion No.
60/2013 considered that the detention of all 12 of the individuals concerned in the present
opinion was arbitrary and that their “convictions are based on charges of acts that would fall
under the rights to freedom of expression and of assembly”.17 In that regard, besides all the
individuals concerned having signed a petition asking for democratic reforms, other activities
may also have influenced their arrest and convictions. For instance, Mr. al-Harithi was
arrested after he published online comments critical of the authorities and Mr. al-Roken’s
arrest took place after he provided legal assistance to victims of human rights violations in
the United Arab Emirates, including to other human rights defenders.
19.
According to the source, beyond their original sentence the placement of the 12
individuals under the munasaha regime was also based on their exercise of their rights and
freedoms. As mentioned above, the munasaha regime has its origin in the Counter-Terrorism
Law. Multiple special procedure mandate holders have expressed the fear that the overly
broad, imprecise and ambiguous wording of that law might have serious effects on the
enjoyment of human rights and fundamental liberties in the United Arab Emirates. They
further expressed concern “about the impact it may have on freedom of opinion and
expression and the freedom to receive and communicate information and ideas, the freedoms
of peaceful assembly and of association, and the prohibition of arbitrary detention”.18
12 Special procedures communication OL ARE 6/2020, p. 4.
13 A/HRC/29/26/Add.2, para. 29.
14 CAT/C/ARE/CO/1, para. 18.
15 Human Rights Committee, general comment No. 35 (2014), para. 12.
16 Ibid, para. 22.
17 Opinion No. 60/2013, para. 21.
18 Special procedures communication OL ARE 6/2020, p.1.
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20.
The source further notes that, for example, article 14 of the Counter-Terrorism Law
considers as a terrorist offence any act, which threatens “the State’s stability, safety, unity,
sovereignty or security, which contradicts the basic principles underlying the governance
system of the State”. Similarly, article 15 states that: “Temporary imprisonment shall be
imposed on whoever declares, by any means of communication, his opposition to the State,
or to the ruling system therein or his non-allegiance to its leadership.” These provisions are
overly broad and include non-violent conduct, allowing for the conflation of any public
criticism or opposition with terrorism. In that regard, the United Nations High Commissioner
for Human Rights has previously emphasized the risk of human rights violations when terms
such as “extremism” are used to cover non-violent activity, asserting that: “States should
ensure that the focus of their measures is on actual conduct, rather than mere opinions or
beliefs.”19
21.
The source also recalls that equally broad is the definition of “terrorist organization”,
which relies on the vague definition of “terrorist offence”.20 In the light of the fact that a
terrorist offence could entail “threatening the unity of the State” in the form of peaceful
criticism or political activism, the Counter-Terrorism Law subsequently qualifies as a
“terrorist organization” any group of persons assembling for the purpose of advocating for
change, establishing an opposition party or simply constituting a group of people with
ideologies contrary to the status quo.
22.
The source argues that it is these imprecise and ambiguous definitions that allowed
the 12 individuals concerned in the present opinion to be placed under the munasaha regime.
The charges at the UAE94 trial included, inter alia, creating a secret organizational structure
aimed at turning public opinion against the Government and the leadership of the State and
communicating with individuals and international and foreign entities to distort the image of
the State.21
iii.
Category III
23.
According to the source, the 12 individuals are currently detained for counselling
purposes, despite having served their sentences in full.
24.
The source refers to the guidance of the Human Rights Committee22 on the application
of non-punitive detention that follows the completion of a sentence, which states that: “When
a criminal sentence includes a punitive period followed by a non-punitive period intended to
protect the safety of other individuals, then once the punitive term of imprisonment has been
served, to avoid arbitrariness, the additional detention must be justified by compelling
reasons arising from the gravity of the crimes committed and the likelihood of the detainee’s
committing similar crimes in the future. States should only use such detention as a last resort
and regular periodic reviews by an independent body must be assured to decide whether
continued detention is justified. State parties must exercise caution and provide appropriate
guarantees in evaluating future dangers. The conditions in such detention must be distinct
from the conditions for convicted prisoners serving a punitive sentence and must be aimed at
the detainee’s rehabilitation and reintegration into society.”23
25.
The source submits that detention in a munasaha centre is ordered by a decision of a
court with jurisdiction over State security offences (since 2016, in the United Arab Emirates
19 A/HRC/33/29, para. 61.
20 Article 1 of the Counter-terrorism Law defines a terrorist organization as a “Group formed of two or
more persons, which acquires legal personality ipso jure or which is created ipso facto, that commits a
terrorist act, directly participates in, threatens of, aims at, plans, seeks, promotes or aids the
commission of such act regardless of the name, form, place of establishment, location, nationality or
place of existence of its members.”
21 Opinion No. 60/2013, para. 7.
22 The source notes that while this guidance refers to the application of the Covenant, to which the
United Arab Emirates is not a party, it lays out some important principles to prevent arbitrary
detention.
23 Human Rights Committee, general comment No. 35 (2014), para. 21.
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that is the State Security Chamber of the Abu Dhabi Federal Court of Appeal24) upon a
request by the State security prosecution.25 The Counter-Terrorism Law does not explicitly
require the court to determine the duration of detention at a munasaha centre for individuals
considered as terrorist threats, nor does it explicitly require that any detention order be
renewed. Instead, in accordance with article 40 (3) of the Counter-Terrorism Law and article
11 of the Munasaha Centre Law, the munasaha centre must submit to the prosecution a report
every three months on each person detained at the centre. The prosecution then submits the
report, along with its opinion as to whether or not it deems that said person is likely to commit
a terrorist offence, to the court. The law states that it is then the responsibility of the court to
order the release of the person, should it find that their “condition” so allow.
26.
The source notes with concern that there are examples of previous munasaha
detainees, including a blogger and human rights defender, making confessions and repenting
in televised recordings. 26 The source is concerned that the Emirati authorities have
established a system whereby a confession and repentance, possibly public, is required from
individuals detained at munasaha centres before the prosecution will recommend they be
released.
27.
According to the source, this system led the Committee against Torture to express
concern “over the use of munasaha (‘counselling’) centres to indefinitely extend the
incarceration of convicted individuals considered to hold terrorist, extremist or deviant
thoughts beyond the times provided for in their sentences”.27 In that regard, the source notes
that two of the individuals have been detained under the munasaha regime for over three
years. In view of the risk of indefinite detention, the Committee against Torture called on the
United Arab Emirates to ensure that “orders for such detentions are limited in duration, that
maximum periods of detention in munasaha centres are clearly defined by law, and that
detainees have the ability to challenge the legality of their detention”.28
28.
The source submits that although the imposition of an indefinite sentence has not been
considered to violate international human rights law per se, international and regional treaty
bodies have found that the tariff must be set by an independent tribunal and the preventive
element should be justified by compelling reasons and must be regularly reviewed by a
judicial body with the power to order release following the expiry of the tariff. Detention
under the munasaha regime, however, does not follow such guidance. The State security
prosecutor is responsible for requesting that individuals be placed under such a regime. The
federal public prosecution falls under the direct supervision and control of the Minister of
Justice and the appointment of its members is done by the President upon approval of the
Council of Ministers.29 That grants the executive great control over this body of the judiciary,
which is supposed to act in an independent and impartial manner. Furthermore, the court that
acts in such cases is the State Security Chamber of the Abu Dhabi Federal Court of Appeal.
Judges of this court are appointed by decree, issued by the President of the United Arab
Emirates, upon a recommendation of the Minister of Justice, himself appointed by the
President.30 The decisions issued by the Abu Dhabi Federal Court of Appeal may only be
appealed at the State Security Chamber of the Federal Supreme Court, which is the court of
last instance for State security and terrorism-related crimes.31
29.
The source recalls that the Working Group on Arbitrary Detention has stated that it
“considered the criminal proceedings before the Federal Supreme Court and found them to
be in violation of the right to a fair trial”.32 The Working Group further expressed its concern
24 The source refers to article 12 (bis) Federal Law No. 3 of 1983, as amended by Federal Law No. 11 of
2016.
25 The source refers to article 40 (2) of the Counter-Terrorism Law and article 8 of the Munasaha Centre
Law.
26 Special procedures communication AL ARE 1/2018, available from
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23771.
27 CAT/C/ARE/CO/1, para. 17.
28 Ibid., para. 18.
29 A/HRC/29/26/Add.2, para. 71.
30 Ibid., para. 22.
31 Article 33 (8), Federal Law No.10 concerning the Supreme Federal Court.
32 Opinion No. 21/2017, para. 52.
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that the judiciary in the United Arab Emirates, particularly the Federal Supreme Court, was
not independent and impartial because it was under the control of the executive branch.
30.
According to the source, reportedly the majority of the 12 individuals concerned in
the present opinion have not had the opportunity to appear before the court in relation to the
judgments to detain them on the grounds that they still posed a “terrorism threat”. In addition,
the majority of them were not presented with said judgments prior to their detention. Only
Mr. al-Hmadi and Mr. al-Marzooqui were able to challenge their placement in the munasaha
regime. The source recalls that they did not receive all the necessary guarantees for their
defence, since they were only provided with access to legal counsel after the initial decision
to place them in munasaha centres had been issued, contrary to article 11 of the Universal
Declaration of Human Rights.
31.
The source further submits that their appeal was scheduled to be heard before the
Federal Supreme Court on 22 September 2022. As mentioned above, however, that court will
not render an independent decision. In that regard, the source recalls that the protections
associated with the “right to a fair trial are applicable where sanctions, because of their
purpose, character or severity, must be regarded as penal, even if, under national law, the
detention is qualified as administrative”.33
32.
In the light of this, the source argues that it appears that detainees at munasaha centres,
including all 12 individuals concerned in the present opinion, are being deprived of their right
to challenge the legality of their detention before an independent judicial authority and to be
recognized as persons before the law, in violation of articles 14 (6) and 22 of the Arab Charter
and articles 26 and 28 of the Constitution of the United Arab Emirates, which enshrines the
right to personal liberty and the presumption of innocence.
33.
Furthermore, the source submits that in each of their cases, the 12 individuals
completed their prison sentences before being detained at the munasaha centre of Al Razeen
prison. Reportedly, all munasaha centres in the country are located within prison complexes.
There is no evidence that the facilities and infrastructure of munasaha centres differ from the
prisons in which they are situated. Indeed, all the 12 individuals concerned are detained in a
wing of Al Razeen prison. The present cases indicate that there is no distinction between the
Al Razeen munasaha centre and the Al Razeen prison complex in which it is situated. In that
context, the source recalls that the Working Group has stated that “the conditions of
preventive detention regimes must satisfy demanding proportionality requirements and
establish a difference between the regimes for preventive detention and for ordinary prison
sentences”.34
34.
According to the source, this shows that detention in munasaha centres is not in line
with international standards and procedural safeguards are not sufficient to ensure that
detention under such a regime is not arbitrary. Consequently, as the 12 individuals are
subjected to such a regime, their detention is arbitrary.
iv.
Category V
35.
The source submits that the placement of the 12 individuals in detention under the
munasaha regime has occurred in the context of a systematic crackdown on and repression
of dissenting voices in the United Arab Emirates. The source thus claims that their detention
is part of a widespread policy of discrimination against those who have political views that
diverge from the official government discourse.
36.
According to the source, this policy is marked by a legal framework that criminalizes
any form of criticism against the Government. The Counter-Terrorism Law, in addition to
the new Law on Combating Rumours and Cybercrime that came into force in January 2022,
plays a pivotal role in restricting civic space and free speech, as well as enabling the
criminalization of the work of journalists, whistle-blowers, activists and peaceful critics,
subjecting those engaged in lawful activities to harsh prison sentences and excessive fines.
The Penal Code further contributes to this restrictive framework by criminalizing all speech
33 Opinion No. 31/2017, para. 30.
34 Opinion No. 21/2015, para. 24.
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criticizing the Government and its authorities. For example, according to the source, articles
183 and 184 criminalize acts that insult, mock or harm the reputation of the President, the
flag, the national emblem or national symbols, the State itself, its institutions or officials, its
founding members and the national anthem.
37.
Furthermore, the source submits that the Government places great restrictions on
freedom of assembly. Public meetings require government permits and unauthorized political
or labour protests are subject to dispersal by the police, which leads to demonstrations being
rare in practice. Non-governmental organizations must register with the Ministry of Social
Affairs and can receive subsidies from the Government, which maintains broad discretion to
interfere in and dictate the operations of associations in the country.
38.
In that context, the source claims that the deprivation of liberty of the 12 individuals
constitutes a violation of international law for reasons of discrimination based on status and
is aimed at or can result in ignoring the equality of human rights. More specifically, their
continued detention under the munasaha regime constitutes discrimination against them
because of their work as lawyers, human rights defenders and peaceful critics.
39.
The source recalls that when detention results from the active exercise of civil and
political rights, there is a strong presumption that the detention also constitutes a violation of
international law on the grounds of discrimination based on political or other views. In
addition, the 12 individuals appear to have been targeted for being who they are (namely
among those convicted at the UAE94 trial), rather than for something that they did during
their period of detention that would justify the need for rehabilitation. Consequently, the
source argues that their detention is a discriminatory act against them due to their political
opinions.
Response from the Government
40.
On 7 December 2022, the Working Group transmitted the allegations from the source
to the Government of the United Arab Emirates under its regular communications procedure.
The Working Group requested the Government to provide, by 6 February 2023, detailed
information about the current situation of the 12 individuals and to clarify the legal provisions
justifying their continued detention, as well as its compatibility with the country’s obligations
under international human rights law. The Working Group also called upon the Government
to ensure their physical and mental integrity.
41.
The Working Group regrets that the Government did not respond to the allegations
transmitted to it within the time limit of 60 days.
Discussion
42.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
43.
In determining whether the detention of the 12 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
requirements constituting arbitrary detention, the burden of proof should be understood to
rest upon the Government if it wishes to refute the allegations.35 In the present case, the
Government has chosen not to challenge the prima facie credible allegations made by the
source.
44.
At the outset, the Working Group refers to opinion No. 60/2013, in which it held that
the detention of the 61 individuals convicted in the UAE94 trial was arbitrary. The 12
individuals named above were among the 61 individuals who were arbitrarily detained. The
Working Group has considered the source’s submissions in the present case on a fresh basis,
but notes its previous opinion as relevant context regarding the background to the current
detention of the individuals concerned.
35 A/HRC/19/57, para. 68.
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Category I
45.
Under category I, the source alleges that the detention of the 12 individuals is arbitrary
as it does not respect the principle of legality. According to the source, the individuals are
currently detained under the munasaha regime, regulated by the Counter-Terrorism Law and
the Munasaha Centre Law, which were enacted in 2014 and 2019 respectively. They were
convicted during the UAE94 trial, which took place in July 2013, before the enaction of those
laws.
46.
Under article 11 (2) of the Universal Declaration of Human Rights on the principle of
non-retroactivity of criminal laws: “No one shall be held guilty of any penal offence on
account of any act or omission which did not constitute a penal offence, under national or
international law, at the time when it was committed.”
47.
In the present case, the Working Group notes that the 12 individuals are currently
being detained under the munasaha regime, regulated by the Counter-Terrorism Law and the
Munasaha Centre Law, which were enacted in 2014 and 2019 respectively. This current
detention therefore post-dates the events for which the 12 individuals were arrested and
convicted in 2013. Accordingly, the Government’s actions violate the principle of non-
retroactivity (nullum crimen sine lege), which prohibits the retroactive application of the law
in criminal cases.36
48.
The source submits that the two laws, upon which the detention of the 12 individuals
concerned is based, are vague as they contain imprecise and ambiguous definitions that defy
the principle of legal certainty, as prescribed in article 11 of the Universal Declaration of
Human Rights. According to the source, the definition of “posing a terrorism threat” is set
out in article 40 (1) of the Counter-Terrorism Law, which establishes that “a person shall be
deemed as posing a terrorist threat if said person adopts extremist or terrorist ideology to the
extent that he/she seems likely to commit a terrorist offence.” However, the law is vague as
to the threshold at which a person will be deemed “likely” to commit a terrorist offence, nor
is it clear how “likelihood” is assessed. The source further states that the definition of a
terrorist offence in relation to article 40 (1) of the Counter-Terrorism Law is vague and does
not assist in the interpretation of the provision.
49.
The Working Group has specified that one of the fundamental guarantees under
international human rights law is the principle of legality, meaning that an act can be punished
only if, at the time of its commission, the act was the object of a valid, sufficiently precise,
written criminal law to which a sufficiently certain sanction was attached. That is important
so that it is clear what types of behaviour and conduct constitute a criminal offence. 37
Conversely, vaguely and broadly worded provisions, which cannot qualify as lex certa,
violate the due process of law that is undergirded by the principle of legality in article 11 (2)
of the Universal Declaration of Human Rights.38 The Working Group has further stated that
such vaguely and broadly worded laws allow for excessively broad interpretations of their
provisions, thereby resulting in unjustified and arbitrary usage and that proceedings in
violation of article 11 (2) of the Universal Declaration of Human Rights are arbitrary for the
purpose of article 9 of the Declaration, which states that: “No one shall be subjected to
arbitrary arrest, detention or exile.”39 The Working Group has in its jurisprudence noted that
laws that are vaguely and broadly worded may have a chilling effect on the exercise of the
right to freedom of expression, as they have the potential for abuse and may also violate the
principle of legality under article 11 (2) of the Universal Declaration of Human Rights, as it
makes it unlikely or impossible for the accused to have a fair trial.40
50.
The Working Group considers that article 40 (1) of the Counter-Terrorism Law does
not meet the standards of international human rights law set out above. It includes a circular
definition (a person who poses a “terrorist threat” is defined in the law as someone who
“adopts extremist or terrorist ideology to the extent that he/she seems likely to commit a
36 Opinion No. 19/2022, para. 56.
37 Opinion No. 11/2021, para. 67.
38 Opinion No. 10/2018, paras. 50–52.
39 See also opinion No. 19/2022, para. 56.
40 See, for example, opinion No. 88/2017, para. 50.
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11
terrorist offence”). This partially circular definition is all the more problematic as it does not
provide guidance as to what is meant by the term “terrorism” in this context. Moreover,
article 40 (1) also relies on the words “seems” and “likely”, both of which are broad terms,
which are not elaborated on in terms of their parameters or thresholds. The Working Group
also considers that detention imposed indefinitely under the pretext of “rehabilitation needs”
does not alter the fact that the law results in the incarceration of persons and therefore must
adhere to the applicable body of international human rights law. On that basis, the Working
Group considers that the Counter-Terrorism Law creates significant risks of overbroad
application and is thereby incompatible with article 11 (2) of the Universal Declaration of
Human Rights.
51.
Under category I, the source also submits that there is a violation, as the 12 individuals
have already served their respective sentences but are still detained. As set out above, in its
description of category I, the Working Group considers a deprivation of liberty as arbitrary
under category I when it is impossible to invoke any legal basis justifying the deprivation of
liberty, such as when a person is kept in detention after the completion of his or her sentence.41
That is precisely the situation here, according to the source’s unrefuted allegations. The
detention of the 12 individuals therefore lacks a valid legal basis and is in violation of articles
3 and 9 of the Universal Declaration of Human Rights.
52.
For these reasons, the Working Group finds that there is no valid legal basis justifying
the detention of the 12 individuals and therefore concludes that their detention is arbitrary
under category 1.
Category II
53.
The source has submitted that the current deprivation of liberty of the 12 individuals
arises from their exercise of the rights or freedoms guaranteed under of the Universal
Declaration of Human Rights. The source asserts, in particular, that their deprivation of
liberty resulted from, inter alia, the peaceful and legitimate exercise of their rights to freedom
of expression and assembly under articles 19 and 20 of the Universal Declaration of Human
Rights.
54.
The Working Group notes that, under article 19, everyone has the right to freedom of
expression and that that right includes the freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of one’s choice. That right includes political discourse,
commentary on public affairs, the discussion of human rights and journalism. It protects the
holding and expression of opinions, including those which are critical of, or not in line with,
government policy.42 Under article 20 of the Universal Declaration, everyone has the right to
freedom of peaceful assembly and association.
55.
The source mentions the Working Group’s decision in its opinion No. 60/2013, in
which it found that the initial detention of the individuals concerned was arbitrary due to their
arrest resulting from “acts that would fall under the rights to freedom of expression and of
assembly”. It proposes that their placement under the munasaha regime is also a result of
their exercise of the same rights under the Counter-Terrorism Law. The source submits that
the broadness and ambiguity of these laws result in non-violent activity being considered as
extremism and peaceful criticism being considered as a terrorist offence.
56.
The Working Group has noted above that laws that are vaguely and broadly worded,
such as the present laws addressed in category I above, may have a deterrent effect on the
exercise of the rights to freedom of movement and residence, freedom of asylum, freedom of
thought, conscience and religion, freedom of opinion and expression, and freedom of
peaceful assembly and association, as well as the rights to participation in political and public
affairs, to equality and non-discrimination and to the protection of persons belonging to
ethnic, religious or linguistic minorities, as they have the potential for abuse, including the
arbitrary deprivation of liberty.43 The Working Group has also expressed its concern that anti-
41 A/HRC/19/57/Add.3, paras. 28 and 34.
42 Opinion No. 21/2021, para. 76.
43 Opinion No. 10/2018, para. 55.
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terrorism laws “by using an extremely vague and broad definition of terrorism, bring within
their fold the innocent and the suspect alike and thereby increase the risk of arbitrary
detention”, with the consequence that: “Legitimate democratic opposition … becomes a
victim in the application of such laws.”44
57.
The Working Group notes that the source’s arguments appear to link the original cause
of detention in the UAE94 trial and the current extended detention of the 12 individuals. In
the absence of a convincing counter-argument from the Government, it appears that the 12
detainees were selected for ongoing incarceration under the Counter-Terrorism Law and the
Munasaha Centre Law on the basis of their public activities involving the exercise of their
rights to freedom of expression and of assembly, for which they were originally arbitrarily
detained. Nothing in the materials provided substantiates the idea that these individuals
would come under an exception to the right to freedom of expression. The Working Group
notes that the Government has not provided any substantiated indication that these
individuals would pose a threat to “national security or of public order (ordre public), or of
public health or morals” if released at the time of completion of their sentences. The Working
Group therefore considers that the source has given sufficient evidence that the extended
detention of the 12 individuals has therefore resulted from their exercise of their guaranteed
rights.
58.
Given the above-mentioned observations, the Working Group considers that the
deprivation of liberty of the 12 individuals is arbitrary, as it resulted from their exercise of
the rights or freedoms guaranteed under article 19 of the Universal Declaration of Human
Rights. The deprivation of liberty, therefore, falls under category II.
Category III
59.
Given its findings under category II above, the Working Group considers that the legal
proceedings pursuant to which the 12 detainees have been subjected to further ongoing
detention should not have occurred. Nonetheless, it will address the specific category III
allegations below.
60.
The source submits that placing individuals in detention under the munasaha regime
violates their right to a fair trial. The source reports that the prolonged detention was
requested by the State security prosecution, which is under the supervision of the Minister of
Justice, who is appointed by the President of the United Arab Emirates. The body of the
judiciary responsible for deciding if the individuals will remain detained therefore lacks
independence from the executive. Such decisions may only be appealed at the State Security
Chamber of the Federal Supreme Court.
61.
Article 10 of the Universal Declaration of Human Rights states that: “Everyone is
entitled in full equality to a fair and public hearing by an independent and impartial tribunal,
in the determination of his rights and obligations and of any criminal charge against him.”
62.
The Working Group has previously found instances in which criminal proceedings
before the Federal Supreme Court are in violation of the right to a fair trial guaranteed by
article 10 of the Universal Declaration of Human Rights. 45 In addition, the Special
Rapporteur on the independence of judges and lawyers noted after her visit to the country in
2014 that the current mechanism for appointing judges, including the president and other
members of the Federal Supreme Court, by the highest representatives of the executive
branch lacks transparency and may expose them to undue political pressure.
63.
In the present case, the Government has not responded to the allegations of a lack of
an independent tribunal involved in the decision to keep the 12 individuals in detention after
they completed their sentences. Noting the unrefuted facts regarding the lack of
independence, due to the court being under the effective control of the executive branch, and
the link between the 12 detainees and their activities in the public sphere, in the Working
Group’s view the information provided by the source provides sufficient grounds for it to
44 E/CN.4/1995/31, para. 25 (d).
45 Opinion No. 21/2017, para. 52, and opinion No. 60/2013, para. 23.
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13
conclude that there has been a violation of the right to a fair trial guaranteed under article 10
of the Universal Declaration of Human Rights, which falls under category III.
64.
The source has argued that a confession and repentance is required before individuals
get a recommendation of release. It submits that a blogger and a human rights defender have
appeared making confessions and repenting in televised recordings. As a matter of customary
human rights law, all persons should have the right not to be compelled to testify against
themselves or to confess guilt. The Working Group considers that the terrorism laws in
question violate that right, particularly in circumstances when detainees have already served
their sentences on other matters. That also impinges on the rights of detainees against self-
incrimination.
65.
According to the source, the majority of the individuals concerned had not had an
opportunity to appear before the court in relation to the judgments to detain them. Only two
individuals were able to challenge their placement in the munasaha regime and they only
obtained legal counsel after the initial decision to place them in munasaha centres.
66.
The Working Group recalls that all persons deprived of their liberty have the right to
legal assistance by a counsel of their choice at any time during their detention, including
immediately after their apprehension, and that such access is to be provided without delay.46
The Government has failed to respond to the allegations by the source that the 12 individuals
were not provided with lawyers in a timely manner. As a result, their right to adequate time
and facilities to prepare and present a defence and to the equality of arms under articles 10
and 11 (1) of the Universal Declaration of Human Rights was violated.
67.
On the basis of the foregoing, the Working Group considers that the violations are
serious and render the detention arbitrary under category III.
Category V
68.
Under category V, the source alleges that the continuous detention of the 12
individuals is part of a widespread policy of discrimination against those who have political
views that diverge from the official government discourse. Under article 2 (1) of the
Universal Declaration of Human Rights, “Everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status.” Article 7 further states that: “All are equal before the law and are entitled without
any discrimination to equal protection of the law. All are entitled to equal protection against
any discrimination in violation of this Declaration and against any incitement to such
discrimination.”
69.
The Working Group notes that it was the activities of the 12 individuals as peaceful
critics that led to their arrests and detention. However, the unrefuted claims indicate that their
current detention at the munasaha centres is retaliatory in nature, directed against those who
dare to criticize the Government. The 12 individuals have already served their respective
sentences and their further detention amounts to a denial of the equality of human rights. The
Working Group, in its jurisprudence, has held that when detention results from the active
exercise of civil and political rights, there is a strong presumption that the detention also
constitutes a violation of international law on the grounds of discrimination based on political
or other views.47
70.
The Working Group finds that the 12 individuals have been arbitrarily deprived of
their liberty on discriminatory grounds, owing to their status as human rights defenders and
on the basis of their political or other opinion in seeking to hold the authorities to account.
Their deprivation of liberty violates articles 2 and 7 of the Universal Declaration of Human
Rights and is arbitrary under category V. The Working Group refers the present case to the
Special Rapporteur on the situation of human rights defenders.
46 See 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.
47 Opinion No. 21/2021, para. 92.
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Disposition
71.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of the 12 individuals, being in contravention of articles 2,
3, 7, 9, 10, 11 and 19 of the Universal Declaration of Human Rights is arbitrary and
falls within categories I, II, III and V.
72.
The Working Group requests the Government of United Arab Emirates to take the
steps necessary to remedy the situation of the 12 individuals without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights.
73.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release all 12 individuals immediately and accord
them an enforceable right to compensation and other reparations, in accordance with
international law.
74.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of the 12
individuals and to take appropriate measures against those responsible for the violation of
their rights.
75.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the situation of human rights defenders, for
appropriate action.
76.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
77.
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 12 individuals have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to the 12
individuals
(c)
Whether an investigation has been conducted into the violation of the rights of
the 12 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 the United Arab Emirates with its international
obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
78.
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.
79.
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.
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15
80.
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.48
[Adopted on 30 March 2023]
48 Human Rights Council resolution 51/8, paras. 6 and 9.