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.23-17608 (E) 200923 200923
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-seventh session, 28 August–
1 September 2023
Opinion No. 43/2023 concerning Selim Diyaboğlu (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 22 May 2023 the Working Group
transmitted to the Government of the United Arab Emirates a communication concerning
Selim Diyaboğlu. The Government replied to the communication on 23 June 2023. The State
is not a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/43
General Assembly
Distr.: General
21 September 2023
Original: English
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Selim Diyaboğlu (or Saleem Ahmed Diab according to the Arabic name on his Syrian
passport and residence permit for the United Arab Emirates) is a national of the Syrian Arab
Republic and Türkiye and a businessman. Born on 25 October 1990, he was 30 years old at
the time of his arrest, when he was residing legally in the United Arab Emirates, where he
had been doing business for 15 years. He has no previous criminal record. Before residing in
the United Arab Emirates, he lived in Türkiye with his family and acquired Turkish
citizenship on 11 July 2020.
5.
According to the information received, Mr. Diyaboğlu was first arrested at Dubai
International Airport by security forces on 28 August 2020 and held there in detention for
11 days. After seizing his Turkish passport, the authorities of the United Arab Emirates
released him. Approximately 20 days after his release, he was arrested again at his home in
the United Arab Emirates and has been detained since then at the Al Wathba prison in Abu
Dhabi.
6.
The source alleges that the officers who arrested Mr. Diyaboğlu at the airport did not
show him a warrant or provide any reasons for his arrest. Instead, they asked insistent
questions concerning his recent acquisition of Turkish citizenship.
7.
The source claims that, apart from knowing where he is being held, there is very
limited information available about the case against Mr. Diyaboğlu and his deprivation of
liberty. It is not known whether he has been brought before a court. Allegedly, he has been
held incommunicado and unable to contact his family and the outside world since the onset
of his detention. In addition, he has been denied contact and communication with the
Embassy of Türkiye in the United Arab Emirates.
8.
It is alleged that Mr. Diyaboğlu was subjected to torture and ill-treatment in order to
produce an incriminating confession. In addition, the authorities also tried to make him sign
certain documents through recourse to torture, physical force and threats.
9.
Based upon the information available and his ongoing detention in Al Wathba prison,
the source assumes that Mr. Diyaboğlu has received a prison sentence under Law No. 7 of
2014 on combating terrorist offences, since the legislation has been applied mostly against
foreign citizens residing in the United Arab Emirates.
10.
In that context, the source claims that Law No. 7 on combating terrorist offences is
incompatible with international law, due to the broad and unclear formulation of the terms
“terrorism”, “terrorists” and “terrorist crimes”, which allegedly appear to contravene the
principle of legal certainty and allow for subjective interpretation. The fact that the law does
not clearly state which activities it is criminalizing is reported to be contrary to article 11 of
the Universal Declaration of Human Rights, since the concepts of “terrorist”, “terrorist
organization” or even “membership” remain open to subjective interpretation, despite the
fact that the use of such terms could potentially lead to life imprisonment or the death penalty.
11.
According to the source, the punishments (including life imprisonment and the death
penalty) for those accused of crimes such as membership of, affiliation with or support for a
terrorist entity risk being unlawfully disproportionate due to the broad categorization of
entities that could constitute a “terrorist organization”.
(i)
Category I
12.
The source submits that Mr. Diyaboğlu was not given a warrant nor any reason for his
arrest. He has been placed outside the protection of the law and deprived of his legal
safeguards as a detainee, including his right to legal counsel and to habeas corpus. His
incommunicado detention allegedly constitutes a violation of the right to a fair trial and
amounts to a prima facie case of enforced disappearance. The source thus submits that the
arrest and prolonged incommunicado detention of Mr. Diyaboğlu by the authorities of the
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United Arab Emirates lack any legal basis, in violation of articles 3, 6 and 9 of the Universal
Declaration of Human Rights and articles 14 (1), (2) and (3) and 16 (1) of the Arab Charter
on Human Rights, and are therefore arbitrary under category I.
(ii)
Category III
13.
The source insists that Mr. Diyaboğlu was not promptly informed of either the reasons
for his arrest or of any charges against him. He was also held incommunicado in a secret
location for a period of more than seven months. The incommunicado detention of
Mr. Diyaboğlu also prevented him from exercising his right to notify and communicate with
his family, the Embassy of Türkiye and his lawyer, in accordance with principles 15, 16, 17,
18 and 19 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, and his right to be brought promptly before a judge and to be
tried within a reasonable time, as stipulated in principles 37 and 38 of the Body of Principles.
14.
In addition to requiring that arrests only occur on grounds prescribed by law, under
international law, including article 14 (2) of the Arab Charter on Human Rights, arrests must
be carried out in accordance with procedures prescribed by law. Similarly, article 14 (5) of
the Arab Charter on Human Rights guarantees that: “Anyone arrested or detained on a
criminal charge shall be brought promptly before a judge or other officer authorized by law
to exercise judicial power and shall be entitled to trial within reasonable time or to release.”
The source argues that the failure of the authorities to present a warrant at the time of arrest
and to notify the detainee of the charges constitute violations under category III.
15.
In the present case, the source claims that Mr. Diyaboğlu was not informed of the
grounds for his arrest at the time that he was detained on 28 August 2020, which constitutes
a direct violation of the prohibition of arbitrary arrest. He was kept in conditions of solitary
confinement without any notification of the charges against him. Thus, the source argues that
the United Arab Emirates violated his rights under article 9 of the Universal Declaration of
Human Rights, articles 14 (1) and 16 (1) of the Arab Charter on Human Rights, and principles
2, 10 and 36 (2) of the Body of Principles.
16.
The source also claims that, although arrest and prolonged incommunicado detention
fall within category I, such practices also constitute a violation of the right to a fair trial.
Secret and incommunicado detention constitutes the most heinous violation of the norm
protecting the right to liberty of a person under international law. According to the source,
the inherent arbitrariness of these forms of deprivation of liberty lies in the fact that the
individual is left outside the cloak of any legal protection. Incommunicado detention refers
to a type of deprivation of liberty in which a detainee’s communication with other human
beings is either highly restricted or non-existent; the detainee is held outside the reach of the
law, without the possibility of resorting to legal procedures, including habeas corpus.
Denying detainees contact with their families and legal counsel renders detention
incommunicado. That, in turn, may facilitate or in and of itself constitute torture. The source
recalls that the Body of Principles expressly states that “communication of the detained or
imprisoned person with the outside world, and in particular his family or counsel, shall not
be denied for than a matter of days”.
17.
In the present case, it is alleged that Mr. Diyaboğlu is being held in incommunicado
detention at Al Wathba prison in Abu Dhabi. The source reports that the violation of this
right by the United Arab Emirates has enabled other violations, such as torture, to occur while
he is being held incommunicado. As a result, the source claims that the United Arab Emirates
has violated Mr. Diyaboğlu’s rights under article 3 of the Universal Declaration of Human
Rights and article 14 (5) of the Arab Charter on Human Rights.
18.
In the present case, in addition to being held incommunicado, which constitutes a form
of torture itself, the source claims that Mr. Diyaboğlu was subjected to torture and ill-
treatment in a violation of the absolute prohibition of torture as enshrined in articles 1, 2 and
16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, article 5 of the Universal Declaration of Human Rights and principle 6 of the
Body of Principles.
19.
The source also submits that the prolonged incommunicado detention of
Mr. Diyaboğlu violates his right to a fair trial and the presumption of innocence, in violation
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of articles 10 and 11 of the Universal Declaration of Human Rights and articles 8, 12, 13 and
16 of the Arab Charter on Human Rights.
20.
The Vienna Convention on Consular Relations requires that, when non-nationals are
detained, the authorities must inform them of their right to contact consular officials.
According to article 36 (1) (c), consular officials must remain able to contact the detainee
and arrange legal assistance if necessary. Furthermore, the Body of Principles provides that
“if a detained or imprisoned person is a foreigner, he shall also be promptly informed of his
right to communicate by appropriate means with a consular post or the diplomatic missions
of the State of which he is a national or which is otherwise entitled to receive such
communication in accordance with international law or with the representative of the
competent international organization”.2
21.
In the present case, the source argues that the United Arab Emirates did not comply
with its obligations to notify Türkiye to ensure consular assistance. Mr. Diyaboğlu’s right to
consular assistance has allegedly been violated by the authorities of the United Arab Emirates
throughout his ongoing detention. Moreover, the source claims that Mr. Diyaboğlu’s arrest
and ongoing detention after his acquisition of Turkish citizenship raises the suspicion that
being a citizen of a certain country has been de facto criminalized.
(b)
Response from the Government
22.
On 22 May 2023, the Working Group transmitted the allegations from the source to
the Government under its regular communication procedure. The Working Group requested
the Government to provide detailed information by 21 July 2023 about the current situation
of Mr. Diyaboğlu. The Working Group also requested the Government to clarify the legal
provisions justifying his detention, as well as its compatibility with the obligations of the
United Arab Emirates under international human rights law. Moreover, the Working Group
called upon the Government to ensure his physical and mental integrity.
23.
In its response of 23 June 2023, the Government argues that Mr. Diyaboğlu was
arrested on 11 September 2020, according to the norms and principles of due process
applicable in the United Arab Emirates, after being informed of the reason for his arrest and
showing him the arrest and search warrant. He was able to examine the warrant in detail and
to read and understand it. He was further informed of the authority that conducted the arrest
and search and his place of detention.
24.
According to the Government, the competent public prosecution charged him with
obtaining and transferring funds to terrorist organizations (Ahrar al-Sham terrorist movement
and the Nusrah Front). In relation to the right to a fair trial, the Government argues that the
procedures carried out by the judicial authorities, from the investigation and accusation to
the judgment, were all done pursuant to legal frameworks provided for in the applicable
national federal laws. The public prosecution oversees investigative and evidentiary work,
whereas the investigation, indictment and interrogation procedures are carried out by the
Public Prosecutor's Office as the only competent authority. The trial is held by fair and
competent courts and by specialized judges, who enjoy full impartiality and independence in
issuing judgments and who perform their duties in accordance with the Constitution and
applicable national laws. The law guarantees the principles and guarantees of a fair trial. On
19 February 2023, the Abu Dhabi Federal Court of Appeal sentenced Mr. Diyaboğlu to
10 years of imprisonment, followed by deportation from the country. The period of pretrial
detention is deducted from the term of the sentence.
25.
In relation to the right to seek the assistance of a lawyer, the Government claims that,
according to the federal law, all accused persons whose cases are being considered by the
courts have the right to appoint a lawyer to defend them, pursuant to the principle of the right
to defence, as guaranteed by the federal law to all persons without discrimination or
distinction. If the defendant cannot afford a lawyer, the court assigns a lawyer, with no cost
to the defendant. In the present case, the Government contends that the court appointed a
lawyer to defend Mr. Diyaboğlu throughout all levels of litigation. Mr. Diyaboğlu was able
to appeal against the judgment issued against him. The substance of the appeal was
2 Body of Principles, principle 16 (2).
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considered in a session dated 19 June 2023, during which the Federal Supreme Court decided
to reject the appeal and uphold the judgment by the Abu Dhabi Federal Court of Appeal.
26.
The Government states that Mr. Diyaboğlu is held in Al Wathba prison in Abu Dhabi,
where all the required standards to ensure the safety of prisoners in terms of food, the
environment, air conditioning, ventilation, entertainment and visits and communications
from their families are provided in accordance with the law on penal institutions.
27.
The Government argues Mr. Diyaboğlu was not subjected to any form of torture or
other cruel, inhuman or degrading treatment nor was he deprived of any of his rights as
guaranteed under federal laws, and in accordance with international human rights standards.
It notes that he has the right to receive visits and telephone calls. He was not prevented from
doing so, in accordance with the procedures applicable in penal institutions. He is in regular
contact with his family members and the last telephone call with his family was on 8 June
2023. He also received a visit from his sister, Bushra Ahmed Diab, on 15 June 2023.
28.
In relation to his physical and mental health, the Government argues that all inmates
in the penal institutions of the United Arab Emirates have the right to health care as a basic
right guaranteed under the last paragraph of article 7 of Federal Law No. 43 of 1992 regarding
the organization of penal institutions. The above-mentioned article provides for the need to
prepare a comprehensive file on the physical and psychological well-being of each inmate in
the penal facility and, accordingly, Mr. Diyaboğlu receives the necessary medical care and is
in good health. The last medical examination conducted was on 28 April 2023. He also
received the coronavirus disease (COVID-19) vaccine of his choice.
(c)
Further comments from the source
29.
On 16 July 2023, the source provided further comments addressing the Government’s
response. In relation to the provision of a warrant, the source argues that the Government has
offered no documentary evidence, such as a copy of the arrest warrant, and has provided no
details as to the circumstances surrounding the detention of Mr. Diyaboğlu. It did not provide
custodial records proving when Mr. Diyaboğlu was referred to each authority and, as noted
above, it has not supplied a copy of a search warrant or arrest warrant, with details of the
legal basis for the arrest.
30.
As regards the incommunicado detention and mistreatment of Mr. Diyaboğlu, the
source argues that he was detained incommunicado for a “long period of time”. The source
notes that the Government has not supplied any visit or telephone records with respect to the
period of Mr. Diyaboğlu’s secret and incommunicado detention or any information about the
whereabouts of Mr. Diyaboğlu’s place of detention, where he was subjected to grave acts of
torture and inhuman treatment. According to the source, Mr. Diyaboğlu, who is a foreign
national and thus particularly vulnerable in a foreign jurisdiction, has been subjected to secret
and incommunicado detention for a long period of time.
31.
As regards the violations of Mr. Diyaboğlu’s right to consular contact and assistance,
the source argues that the Government’s response does not contain any rebuttal of its claims.
The Government’s response does not contain any information concerning the dates of visits.
It argues that Mr. Diyaboğlu’s right to consular assistance has been violated by the authorities
of the United Arab Emirates throughout his detention.
32.
The source argues that Mr. Diyaboğlu was tried in accordance with the anti-terrorism
legislation of the United Arab Emirates, which has already caused concern among the
international community, including certain special procedures of the Human Rights Council,
which published their comments and suggestions on Law No. 7 on combating terrorist
offences.3
33.
The source highlights that fair trial guarantees have been denied to Mr. Diyaboğlu due
primarily to the lack of a trial before an impartial tribunal, insufficient evidence, lack of
effective legal assistance and a perfunctory appellate review. The source notes that the
3 See communication ARE 6/2020, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25663.
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Government’s response merely provides the general conduct of proceedings and the name of
the counsel appointed to Mr. Diyaboğlu’s case.
34.
With respect to the prison conditions in Al Wathba prison, the source argues that the
Government’s response fails to address its factual arguments that are based upon
Mr. Diyaboğlu’s case and the reports of international human rights organizations. Prisoners,
including some with chronic health conditions, have reportedly been denied adequate
medical care. Overcrowding and unsanitary conditions make social distancing and
recommended hygiene practices very difficult. For instance, according to the reports of some
special procedure mandate holders, the experience of an inmate in Al Wathba prison would
be enough to illustrate the conditions in prisons.4
2.
Discussion
35.
The Working Group thanks the source and the Government for their submissions.
36.
In determining whether Mr. Diyaboğlu’s detention is 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. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.5
(a)
Category I
37.
The source argues that the detention of Mr. Diyaboğlu was arbitrary under category I
because he was not shown a warrant nor given any reason for his arrest on 28 August 2020.
The Government argues that he was arrested on 11 September 2020 and the applicable norms
and principles of due process were followed. The Government claims that Mr. Diyaboğlu
was informed of the reason for his arrest and shown the arrest and search warrant, which he
was able to examine in detail and read and understand. He was further informed of the
authority that conducted the arrest and search and of his place of detention.
38.
The Working Group notes that persons who are detained have the right to be promptly
informed of the charges against them. This is inherent in articles 3 and 9 of the Universal
Declaration of Human Rights, as well as principles 2 and 10 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
39.
Moreover, the Working Group has previously stated that, for a deprivation of liberty
to have a legal basis, it is not sufficient that there is a law that may authorize the arrest. The
authorities must invoke that legal basis and apply it to the circumstances of the case.6 This is
typically7 done through an arrest warrant or arrest order (or equivalent document). 8 The
reasons for arrest must be provided immediately upon arrest and must include not only the
general legal basis of the arrest, but also enough factual specifics to indicate the substance of
the complaint, such as the wrongful act and the identity of an alleged victim.9
40.
The Working Group notes that, whereas the Government claims that Mr. Diyaboğlu
was arrested on 11 September 2020, the source states that he was arrested more than 10 days
earlier, on 28 August 2020, at Dubai International Airport by security forces and held there
in detention for 11 days. The Working Group recalls that the commencement of a period of
detention is a factual issue, based on the issue of when the person was no longer at liberty to
leave a location whether due to de jure or de facto restrictions. The Government has not
provided detailed information refuting the source’s claim that Mr. Diyaboğlu was in fact
detained at Dubai International Airport on 28 August 2020 and held for a period of more than
10 days. In this light, the Working Group considers that the source’s claim is established.
4 See, for example, communication ARE 2/2019, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24341.
5 A/HRC/19/57, para. 68.
6 In cases of in flagrante delicto, the opportunity to obtain a warrant will not be typically available.
7 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
8 See, for example, opinion No. 30/2017, paras. 58 and 59.
9 Opinion No. 71/2021, para. 64.
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Given that Mr. Diyaboğlu was only shown an arrest warrant on 11 September 2020 at the
earliest, there is no indication that he was informed at the time of arrest of the reasons
therefor. Consequently, it finds that the Government failed to inform Mr. Diyaboğlu of the
reasons for the arrest at the time of arrest, which leads to the detention of Mr. Diyaboğlu
being arbitrary.
41.
The source argues that it is unknown whether Mr. Diyaboğlu was brought before a
court. The Government says that regular procedures were followed regarding his arrest and
that the procedures carried out by the judicial authorities were all done pursuant to legal
frameworks provided for in the applicable national federal laws, from the investigation and
accusation to the judgment. However, the Government does not refer to the period of
detention starting from 28 August 2020.
42.
The ability to bring proceedings before a court to challenge the arbitrariness and
lawfulness of detention and to obtain, without delay, appropriate and accessible remedies is
a non-derogable right under international law.10 The right to be promptly brought before a
judicial authority or to bring such proceedings is recognized in articles 9, 10 and 11 (1) of
the Universal Declaration of Human Rights, principles 11 and 32 of the Body of Principles
and principles 1, 4, 8, 11 and 15 of the United Nations Basic Principles and Guidelines on
Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring
Proceedings Before a Court (“Basic Principles”). The right to challenge detention also
underlies the right to an effective remedy, which is recognized in article 8 of the Universal
Declaration of Human Rights, principles 11 and 32 of the Body of Principles and principles
10 and 11 of the Basic Principles. Principles 11 (1) and 37 of the Body of Principles support
the contention that detainees have the right to be brought before a judge promptly for an
independent, objective and impartial review of the legal basis for their detention.
43.
Given the lack of a government response regarding the presentation of Mr. Diyaboğlu
before a judge during his detention starting on 28 August 2020, the Working Group concludes
that he was not promptly brought before a judicial officer, within 48 hours of the arrest
barring absolutely exceptional circumstances, in accordance with the international standard
set out in the Working Group’s jurisprudence.11 There is no indication that this delay was a
result of any exceptional circumstances that could justify exceeding the normal 48 hours.
44.
On the basis of the uncontested facts, the Working Group considers that the failure to
bring the detainee before judicial officers within 48 hours, and the failure to provide him with
an independent, objective and impartial review of his detention violated article 9 of the
Universal Declaration of Human Rights and principles 11, 37 and 38 of the Body of
Principles.
45.
The source submits that Mr. Diyaboğlu has been held incommunicado and unable to
contact his family and the outside world since the onset of his detention. The source adds that
he was held incommunicado in a secret location for a period of more than seven months. The
Government argues that he has the right to receive visits and telephone calls and is in regular
contact with his family members.
46.
The Working Group recalls that giving prompt and regular access to family members,
as well as to independent medical personnel and lawyers, is an essential and necessary
protection against arbitrary detention and infringement of personal liberty, as well as a
safeguard for the prevention of torture.12 Moreover, prohibiting contact with the outside
world is contrary to rule 58 of the United Nations Standard Minimum Rules for the Treatment
of Prisoners (the Nelson Mandela Rules)13 and principles 15, 16 (1) and 19 of the Body of
Principles.
10 Basic Principles, principle 4, paras. 4 and 5. The right to challenge the lawfulness of detention before
a judicial authority is considered part of customary international law, which applies regardless of
whether a State is party to the Covenant: see E/CN.4/2005/6/Add.4, paras. 28 and 52. See opinion
No. 15/2019, para. 28.
11 See, for example, opinion No. 34/2020, para. 51.
12 Opinion No. 19/2022, para. 52.
13 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
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47.
Whereas the Government asserts that Mr. Diyaboğlu has been in regular contact with
his family, it provides no information about his initial detention from 28 August 2020, which
lasted more than 10 days according to the source. The only examples it provides are calls on
8 and 15 June 2023, almost three years after his detention began. In this light, the Working
Group considers that the source has provided sufficient information to support a prima facie
case that Mr. Diyaboğlu has been subjected to incommunicado detention.
48.
The Working Group considers that the incommunicado nature of the detention is
contrary to rule 58 of the Nelson Mandela Rules14 and principles 15, 16 (1) and 19 of the
Body of Principles. The Working Group considers that the authorities’ failure to allow
Mr. Diyaboğlu to have access to a lawyer during his incommunicado detention undermined
his right to challenge the lawfulness of his detention under articles 3, 9 and 10 of the
Universal Declaration of Human Rights and principles 11 (1), 32 and 37 of the Body of
Principles. Given that Mr. Diyaboğlu was unable to challenge the legality of his detention,
his right to an effective remedy under article 8 of the Universal Declaration of Human Rights
was also violated.
49.
The source also argues that Mr. Diyaboğlu was held in a secret location for several
months and therefore subjected to enforced disappearance. While the Government states that
Mr. Diyaboğlu is held in Al Wathba prison, it has not provided information about his
whereabouts from the onset of his detention, nor demonstrated that his family was informed
accordingly.
50.
The Working Group therefore considers that Mr. Diyaboğlu was subjected to enforced
disappearance in breach of article 9 of the Universal Declaration of Human Rights. Enforced
disappearances are prohibited by international law and constitute a particularly aggravated
form of arbitrary detention.15 They are also inherently arbitrary, as they place the person
outside the protection of the law, in violation of article 6 of the Universal Declaration of
Human Rights. The Working Group therefore refers the present case to the Working Group
on Enforced or Involuntary Disappearances.
51.
In the light of the above, the Working Group thus concludes that the deprivation of
liberty of Mr. Diyaboğlu lacks a legal basis and is arbitrary under category I.
(b)
Category III
52.
Turning to category III, the Working Group recalls its findings that Mr. Diyaboğlu
was held in prolonged incommunicado detention during which he did not have access to legal
counsel.
53.
In the view of the Working Group, the Government failed to respect Mr. Diyaboğlu’s
right to legal assistance at all times, which is inherent in the right to liberty and security of
person, and his right to a fair and public hearing by a competent, independent and impartial
tribunal established by law with all the guarantees necessary for defence in a criminal case,
in accordance with articles 3, 9, 10 and 11 (1) of the Universal Declaration of Human Rights.
The Working Group considers that that violation substantially undermined the capacity of
Mr. Diyaboğlu to defend himself in any subsequent judicial proceedings. In accordance with
the Basic Principles, persons deprived of their liberty have the right to legal assistance by
counsel of their choice, at any time during their detention, including immediately after the
moment of apprehension, and must be promptly informed of this right upon apprehension
(principle 9); and access to legal counsel should not be unlawfully or unreasonably restricted
(guideline 8). The Working Group therefore finds a serious violation of articles 10 and 11 (1)
of the Universal Declaration of Human Rights and principles 15, 17 and 18 of the Body of
Principles.
54.
The source submits that Mr. Diyaboğlu was subjected to torture and ill-treatment in
order to produce an incriminating confession. It adds that the authorities used torture and
threats to try to make him sign some documents. The Government submits that
14 Ibid.
15 Opinions No. 5/2020, No. 6/2020, No. 11/2020 and No. 13/2020.
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GE.23-17608
9
Mr. Diyaboğlu was not subjected to any form of torture or other cruel, inhuman or degrading
treatment.
55.
The Working Group notes that the source provides no further information regarding
the nature of the alleged torture. The Government’s blanket denial is also vague and lacks
detail. While the Working Group lacks sufficient information to reach a conclusion on the
above allegations, it recalls that the Committee against Torture has made it clear that
incommunicado detention creates conditions that lead to violations of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.16 The Working
Group also recalls that confessions made in the absence of legal representation are not
admissible as evidence in criminal proceedings.17 Furthermore, the 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.18
56.
The source argues that the United Arab Emirates did not comply with its obligations
to notify Türkiye to ensure consular assistance for Mr. Diyaboğlu. The Government provides
no response to this allegation.
57.
As the source notes, the Vienna Convention on Consular Relations requires that, when
non-nationals are detained, the authorities must inform them of their right to contact consular
officials. Article 36 (1) (c) requires that consular officials must remain able to contact the
detainee and arrange legal assistance if necessary. Furthermore, the Body of Principles
provides that “if a detained or imprisoned person is a foreigner, he shall also be promptly
informed of his right to communicate by appropriate means with a consular post or the
diplomatic mission of the State of which he is a national or which is otherwise entitled to
receive such communication in accordance with international law or with the representative
of the competent international organization”.19
58.
Given the unrefuted allegations by the source, the Working Group concludes that
Mr. Diyaboğlu’s right to consular assistance has been violated by the authorities of the United
Arab Emirates. Given that Mr. Diyaboğlu’s Turkish citizenship appears to have been a central
factor in his initial detention on 28 August 2020, the Working Group considers that this
significantly affected his ability to obtain assistance in the legal proceedings brought against
him. The Government’s failure to uphold Mr. Diyaboğlu’s right to consular protection, as
codified in article 36 of the Vienna Convention on Consular Relations, led to grave violations
of his rights to due process and to a fair trial under articles 10 and 11 (1) of the Universal
Declaration of Human Rights and principle 16 of the Body of Principles.
59.
Given the above, the Working Group concludes that the violations of the right to a
fair trial and due process are of such gravity as to give Mr. Diyaboğlu’s deprivation of liberty
an arbitrary character, falling within category III.
60.
The present case is one of many cases brought to the Working Group in recent years
concerning arbitrary detention in the United Arab Emirates.20 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.21
3.
Disposition
61.
In the light of the foregoing, the Working Group renders the following opinion:
16 A/54/44, para. 182 (a).
17 A/HRC/45/16, para. 53. See also opinions No. 61/2020, para. 86; and No. 51/2021, para. 85.
18 See, for example, opinion No. 61/2020, para. 86.
19 Body of Principles, principle 16 (2).
20 See, for example, opinions No. 21/2017, No. 47/2017, No. 58/2017, No. 76/2017, No. 30/2018,
No. 28/2019, No. 55/2019, No. 31/2020, No. 33/2020, No. 34/2020, No. 61/2020, No. 88/2020,
No. 53/2021 and No. 19/2022.
21 See, for example, opinions No. 28/2019, para. 78; No. 31/2020, para. 65; No. 34/2020, para. 68;
No. 53/2021, para. 107; and No. 19/2022, para. 72.
A/HRC/WGAD/2023/43
10
GE.23-17608
The deprivation of liberty of Selim Diyaboğlu, being in contravention of articles 3, 6, 8, 9,
10 and 11 of the Universal Declaration of Human Rights, is arbitrary and falls within
categories I and III.
62.
The Working Group requests the Government of the United Arab Emirates to take the
steps necessary to remedy the situation of Mr. Diyaboğlu without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights.
63.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Diyaboğlu immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
64.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Diyaboğlu and to take appropriate measures against those responsible for the violation
of his rights.
65.
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, for
appropriate action.
66.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
67.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Diyaboğlu has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Diyaboğlu;
(c)
Whether an investigation has been conducted into the violation of
Mr. Diyaboğlu’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the United Arab Emirates with its international
obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
68.
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.
69.
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 of any failure to take action.
70.
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.22
[Adopted on 29 August 2023]
22 Human Rights Council resolution 51/8, paras. 6 and 9.