Opinion; Subjects: BAHRAIN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.24-01918 (E) 140224 150224
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-eighth session,
13–17 November 2023
Opinion No. 74 /2023 concerning Hasan Mushaima, Abdullah Isa
Abdulla Mahroos, Abdulwahab Husain Ali Ahmed Ismaeel and
Abduljalil Radhi Mansoor Makki (Bahrain)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work, 1 on 28 July 2023 the Working Group
transmitted to the Government of Bahrain a communication concerning Hasan Mushaima,
Abdullah Isa Abdulla Mahroos, Abdulwahab Husain Ali Ahmed Ismaeel and Abduljalil
Radhi Mansoor Makki. The Government replied to the communication on 26 September
2023. The State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/74
General Assembly
Distr.: General
15 February 2024
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.
The 2011 non-violent pro-democracy protests led to the warrantless arrests and
subsequent torture of four prominent opposition leaders who are part of the Bahrain 13, a
group of religious and political opposition figures who led the protests and who were arrested
in March 2011 for their leading role in them.
5.
Hasan Mushaima is a political activist and the former Secretary-General of the Haq
Movement, born in 1948.
6.
On 17 March 2011, Mr. Mushaima was awakened and arrested at his house by officers
of the security forces, who refused to show an arrest warrant or explain the reasons for the
arrest. When Mr. Mushaima asked whether they had a court order or an arrest warrant, they
did not answer. The officers searched the house and took Mr. Mushaima to the Şāfirah area.
7.
The authorities did not bring Mr. Mushaima before a judicial authority within 48 hours
of his arrest, in breach of the Code of Criminal Procedure of Bahrain.
8.
Mr. Mushaima was disappeared for over two months from the date of his arrest. He
was not allowed to contact the outside world, except for one phone call to his family, one
month after the arrest. The call was very brief, and Mr. Mushaima was unable to inform his
family of his location. He was unable to contact a lawyer or a court to challenge the
lawfulness of his arrest.
9.
After the arrest, the authorities took Mr. Mushaima to Al-Qurain Military Prison,
where he was beaten, verbally abused and threatened. He was then placed in solitary
confinement and had cold water poured on him.
10.
Mr. Mushaima was later taken to an unknown location, where he was told that a
member of the royal family had come to see him. When that individual suggested that
Mr. Mushaima publicly apologize to the King, Mr. Mushaima refused. Mr. Mushaima was
later taken back to see the same individual, who repeated his previous suggestion. When
Mr. Mushaima again refused, he was attacked and sexually assaulted by masked men.
11.
Mr. Mushaima was brought before the military prosecutor for interrogation, while
blindfolded. The interrogation lasted 10 days and was conducted without the presence of
Mr. Mushaima’s lawyer. Mr. Mushaima was allegedly threatened.
12.
The trial was held on 8 May 2011 before the National Safety Court of First Instance,
which had been established during a national state of emergency following the
pro-democracy protests in Bahrain in 2011. Mr. Mushaima was tried without having been
informed of the charges against him. He saw his lawyer on the day of the trial but was unable
to discuss his case. He was charged with attempting to overthrow the Government, among
other charges, all of which he denied.
13.
On 22 June 2011, Mr. Mushaima was sentenced to 25 years’ imprisonment, which the
source considers to be an effective life sentence. He subsequently appealed that sentence,
along with the other three individuals mentioned below.
14.
On 28 September 2011, the National Safety Court of Appeal formally accepted the
appeals of all four individuals but then substantively rejected them and upheld the initial
verdict of the National Safety Court of First Instance. All four individuals contested that
ruling before the Court of Cassation. In November 2011, the Bahrain Independent
Commission of Inquiry requested a retrial before the civilian courts.
15.
On 30 April 2012, the Court of Cassation accepted the four individuals’ appeals
formally and substantively, annulled the verdict in question and subsequently referred their
cases to the Supreme Court of Appeal.
16.
On 19 June 2012, lawyers representing the four individuals requested the Supreme
Court of Appeal to dismiss the confessions of the four individuals, as, according to the
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Bahrain Independent Commission of Inquiry, they had been obtained under torture.
However, the prosecutor insisted on their inclusion as evidence. Ultimately, the confessions
were the only evidence presented to the Court.
17.
Mr. Mushaima and the other three individuals requested their lawyers to stop
representing them after the judge decided that the hearings would continue in camera for
reasons of national security. New lawyers were appointed by the Supreme Court of Appeal,
and the judge announced that the final ruling would be delivered even if the defendants
refused to attend. The Court was supposed to issue its final verdict on 14 August 2012, but
the hearing was postponed until 4 September 2012.
18.
On 4 September 2012, the Supreme Court of Appeal ruled to reject the appeals. The
four individuals allegedly did not attend the hearing in person but appealed the ruling to the
Court of Cassation.
19.
On 7 January 2013, the Court of Cassation ruled to accept the appeals formally but to
dismiss them substantively.
20.
While serving his sentence in Jau Reform and Rehabilitation Centre, Mr. Mushaima
has reportedly been subjected to mistreatment, including medical negligence and the use of
full shackles during visits to the prison clinic and family visits.
21.
Mr. Mushaima’s phone calls have been closely monitored. He has constantly been
denied medication and regular check-ups. He suffers from diabetes, high blood pressure and
gout, among other conditions. He is also in remission from cancer and requires regular scans,
which have often been missed. His medication is provided sporadically.
22.
On 19 October 2020, Mr. Mushaima was transferred to the Bahrain Defence Force
Hospital after experiencing shortness of breath. Doctors requested that he be seen by a
specialist, but the authorities ignored that request, returning him to prison. Subsequently, his
health deteriorated, and, on 11 November 2020, he was again transferred to the Bahrain
Defence Force Hospital and put on an emergency respirator. It was established that he has a
heart condition.
23.
In May 2021, his health deteriorated further, and he began to experience new
symptoms related to diabetes. He was again transferred to hospital, where he was prescribed
medication and regular follow-up. Neither Mr. Mushaima nor his family was allowed to see
his medical records.
24.
In July 2021, Mr. Mushaima’s health deteriorated yet further, and he was moved to
Kanoo Medical Centre, where he remains. His tests indicated a high blood sugar level, high
blood pressure and kidney and stomach damage, among other conditions, for which he
received no treatment. His condition was aggravated by a lack of movement and adequate
food as well as by psychological pressure.
25.
In March 2022, Mr. Mushaima was allegedly provoked into arguing with the police
at Kanoo Medical Centre. His stay at the medical centre was used as an excuse to isolate him
and deny him the right to call his family.
26.
In mid-September 2022, Mr. Mushaima was offered an alternative sentence by the
Ministry of Interior, according to which he would be released on the same day subject to
many conditions, but he refused, emphasizing his right to unconditional freedom. After that
refusal, he was denied the right to make calls for one year.
27.
On 28 November 2022, Mr. Mushaima was visited at Kanoo Medical Centre by
representatives of the National Institute for Human Rights. However, his situation did not
improve.
28.
Abdullah Isa Abdulla Mahroos, born on 7 September 1965, is a Shia religious figure.
29.
Mr. Mahroos was first arrested in August 2010, on allegedly fabricated charges. He
was tortured in Al-Qalaa Prison and then transferred to the Dry Dock Detention Centre,
where the torture continued for approximately six months.
30.
On 23 February 2011, he was released, only to be arrested 20 days later, on the same
charges. No compelling evidence for those charges could be found. On 17 March 2011, his
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house was violently raided by officers from the National Security Agency and the Ministry
of Interior. It is unclear for how long Mr. Mahroos was kept in custody before being released
after that arrest.
31.
Mr. Mahroos was arrested again on 1 April 2011, at his home, by officers from the
Ministry of Interior, without being shown a search or arrest warrant and without being
informed of the reasons for his arrest. He was beaten and blindfolded during the 30-minute
drive to the headquarters of the National Security Agency.
32.
Mr. Mahroos was disappeared for a month, during which time he endured torture. He
was not allowed contact with the outside world and could not contact a court to challenge the
lawfulness of his arrest. His family was deprived of any information related to the place of
and reason for his detention.
33.
Following his arrest, Mr. Mahroos was kept blindfolded in a basement for six days.
He and other detainees were then taken to an alley, where they were all tortured. Several
security officers hung him up, stripped him naked and beat him with pipes. When he fainted,
the officers threw him to the ground and kicked him, threatening to rape and kill him. He was
sexually assaulted and verbally abused.
34.
The authorities allegedly breached the Code of Criminal Procedure by failing to bring
Mr. Mahroos before a judge within 48 hours of his arrest. In addition, he was denied legal
counsel during the interrogations.
35.
Mr. Mahroos was then transferred to a military prison, having been told that he would
be sent to another State to be executed. For the following two months, he therefore believed
that he was about to be executed. He was tortured at that facility.
36.
During his pretrial detention, the authorities denied Mr. Mahroos his medication,
which led to internal bleeding. His condition was exacerbated by poor nutrition and mental
stress.
37.
On 8 May 2011, Mr. Mahroos and the other members of the Bahrain 13 were tried
before the National Safety Court of First Instance. That was the first time that he had met
with his lawyer and family since his arrest. He was charged with planning to overthrow the
Government, establishing an illegal group, spying for a foreign country, inciting hatred
towards the Government, disrupting public order and working to change the Constitution.
Mr. Mahroos denied all the charges. On 22 June 2011, the Court sentenced him to 15 years
in prison, and he subsequently appealed that sentence.
38.
On 7 January 2013, the Court of Cassation upheld the initial sentences in respect of
all four individuals, including Mr. Mahroos.
39.
For approximately four years, Mr. Mahroos suffered from severe pain caused by his
chronic illness, which was progressively deteriorating. Although the authorities gave him
painkillers, they denied him the necessary treatment by a specialized doctor, despite multiple
requests.
40.
Mr. Mahroos has reportedly started multiple hunger strikes to demand adequate
treatment, but the prison administration has not responded to his demands.
41.
On 29 August 2019, Mr. Mahroos’s family noted during a visit that he was in severe
pain from his chronic illness. The authorities transferred him to the prison clinic, where he
was given only painkillers.
42.
Mr. Mahroos was eventually taken to the Bahrain Defence Force Hospital for a
specialist examination, which established that he had internal abrasions, likely owing to
negligence in addressing his health concerns.
43.
In 2019, Mr. Mahroos was again transferred to hospital for an appointment with a
specialist. However, the specialist did not see him.
44.
Mr. Mahroos has continued to be denied his basic right to medical care. As of June
2023, he was on a hunger strike in protest at his treatment.
45.
Abdulwahab Husain Ali Ahmed Ismaeel is a 69-year-old citizen of Bahrain, born in
1954.
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46.
Mr. Ismaeel is a political activist, a founding member of the Al-Wefaq National
Islamic Society and the co-founder of the Al-Wafaa Islamic Movement, established in 2011.
47.
On 17 March 2011, Mr. Ismaeel was arrested at his home by security officers, who
broke into the house in a violent manner and conducted a search. They arrested Mr. Ismaeel,
beat him and hit his head against a wall. The officers did not have a search warrant, nor did
they present an arrest warrant or give a reason for the arrest.
48.
The authorities reportedly breached the Code of Criminal Procedure, as they failed to
bring Mr. Ismaeel before a judge in the first 48 hours of detention. The officers brought
Mr. Ismaeel to a National Security Agency building and began interrogating him without an
attorney present. Those interrogations continued for three months, with officers transferring
Mr. Ismaeel between the National Security Agency and Al-Qurain Military Prison.
49.
During his interrogations, officers allegedly tortured and insulted Mr. Ismaeel. That
treatment caused him lasting injuries, for which he received no treatment.
50.
Moreover, as punishment for his political activism and opposition to the Government,
as well as for his religious affiliation as a member of the Shia faith community, the authorities
did not allow doctors to examine Mr. Ismaeel for evidence of torture and did not provide
adequate treatment.
51.
Mr. Ismaeel was detained for more than two months without being allowed to contact
the outside world or a court to challenge the lawfulness of his detention. In addition, officers
denied Mr. Ismaeel access to legal counsel until the first day of his trial.
52.
On 8 May 2011, Mr. Ismaeel was tried before the National Safety Court of First
Instance alongside the other members of the Bahrain 13. He was charged with attempting to
overthrow the Government and conspiring with outside groups and forces. The trial
reportedly lacked due process guarantees. Mr. Ismaeel denied all the charges against him.
53.
On 7 January 2013, the Court of Cassation upheld the initial sentences in respect of
all four individuals, including Mr. Ismaeel. He has since been detained in Jau Reform and
Rehabilitation Centre, suffering from multiple serious health conditions. Despite his repeated
requests, the prison authorities continue to deny him access to appropriate medical care.
54.
Reportedly, a judicial request for hospital treatment has been ignored by the
authorities.
55.
Complaints have been filed with the Office of the Ombudsman and the National
Institute for Human Rights but have not resulted in any change to the treatment of
Mr. Ismaeel.
56.
On 1 December 2022, the authorities reportedly prevented Mr. Ismaeel from attending
an appointment with an ophthalmologist.
57.
In December 2022, the authorities prevented Mr. Ismaeel from going to hospital
without being shackled, despite his advanced age and need for crutches to walk. No reason
for that change was provided. All Mr. Ismaeel’s medical appointments at external hospitals
were cancelled. Mr. Ismaeel continues to experience medical negligence, and his health has
severely worsened.
58.
As of April 2023, Mr. Ismaeel continues to face life-threatening medical negligence,
with the prison authorities refusing him permission to attend medical appointments and
imposing punitive measures, including handcuffing.
59.
Abduljalil Radhi Mansoor Makki is a citizen of Bahrain, born in 1960. He is a
prominent religious cleric and political activist.
60.
On 27 March 2011, Mr. Makki was violently arrested at his home in connection with
pro-democracy demonstrations. Security officers did not present an arrest or search warrant,
nor did they inform Mr. Makki of the reasons for his arrest. The officers searched the house
and took Mr. Makki outside while he was barefoot, despite the fact that he had a painful foot
injury. Mr. Makki was placed in a car, blindfolded and taken to an unknown location.
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61.
When Mr. Makki was taken out of the car, he was beaten and interrogated late into
the night. In the morning, he was taken to Al-Qurain Military Prison. He was not permitted
to contact a lawyer and was allowed to call his family only to request new clothes.
62.
Mr. Makki was detained for over two months without being allowed to contact the
outside world or a court to challenge the lawfulness of his detention, in breach of the Code
of Criminal Procedure. During interrogations, the officers beat and insulted him.
63.
At the end of that period, Mr. Makki was transferred, while blindfolded, to the military
prosecution authorities, where he informed the investigator about the torture that he had
endured. The investigator reportedly failed to register that complaint.
64.
Mr. Makki was then transferred to the National Security Agency, where he was
severely tortured, sexually assaulted and verbally abused.
65.
On 8 May 2011, Mr. Makki and the other members of the Bahrain 13 were tried before
the National Safety Court of First Instance. Mr. Makki denied all the charges. On 22 June
2011, the Court sentenced him to life imprisonment for attempting to overthrow the
Government.
66.
On 7 January 2013, the Court of Cassation upheld the initial sentences in respect of
all the individuals, including Mr. Makki.
67.
While in detention, Mr. Makki has been subjected to intentional denial of medical
care. He is suffering from leg and back pain, for which he has received no treatment.
68.
In September 2022, Mr. Makki, who was 62 years old at the time, was transferred to
an external medical facility in a vehicle that was not equipped with air conditioning, despite
the extreme temperature.
69.
On 27 September 2022, Mr. Makki was due to be transferred from Jau Reform and
Rehabilitation Centre again, for an external medical appointment. However, just before the
appointment, he was informed that a doctor would not be present. When Mr. Makki refused
to attend the appointment, he was requested to sign a statement to declare that he was
rejecting medical treatment, which he refused to do. That reportedly provoked an aggressive
response from the officers.
70.
The Public Prosecution Service questioned Mr. Makki as a suspect rather than as a
victim. Reportedly, a wooden board on which he usually slept to alleviate back pain was
taken away in reprisal.
71.
On 9 November 2022, Mr. Makki underwent an eye examination, but the authorities
refused to provide him with glasses, even though he had paid for them. On 5 April 2023, he
was denied permission to attend his scheduled hospital appointment.
72.
The source submits that the detention of the above-mentioned individuals is arbitrary,
in breach of articles 9, 14, 19, 21 and 22 of the Covenant, the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment and rule 24 of the United
Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules), falling under categories I, II, III and V of the Working Group.
(b)
Response from the Government
73.
On 28 July 2023, the Working Group transmitted the source’s allegations to the
Government of Bahrain under its regular communications procedure, requesting a reply by
26 September 2023.
74.
In its reply of 25 September 2023, the Government submits that the four individuals
were charged with attempting to change and overthrow the State’s constitutional and
monarchical system by force; unlawfully establishing and joining a group aimed at changing
and overthrowing the State’s political system by force; using terrorism as a means to achieve
its purpose; communicating with persons working for a foreign State with the intention of
conducting hostile operations against Bahrain; and other, related offences. They founded the
Alliance for the Republic movement, the aim of which is to change the existing constitutional
system by force. They sought to pursue their ends by causing unrest and sedition; disrupting
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the operation of State institutions; blocking private sector activities; inciting murder,
abduction, abuse and sabotage; and inciting non-compliance with the law.
75.
Mr. Mushaima was arrested at his home on 17 March 2011 by law enforcement
officials who duly disclosed their identity and read out the arrest warrant issued against him.
He was brought before prosecutors on 31 March and 3, 4, 9, 12 and 18 April 2011, when, in
the presence of his lawyer, he denied all the charges against him. An examination carried out
during that time did not reveal any visible signs of injury, and he stated that he did not have
any invisible injuries.
76.
Mr. Ismaeel was arrested at his home on 17 March 2011 by officials who duly
disclosed their identity and read out the arrest warrant issued against him. He was brought
before prosecutors on 31 March and 12 and 18 April 2011, when he denied all the charges
against him. An examination carried out during that time did not reveal any visible signs of
injury.
77.
Mr. Mahroos was arrested on 1 April 2011 by officials who disclosed their identity
and read out the arrest warrant issued against him. He was brought before prosecutors on 7
April 2011, when he denied all the charges against him. An examination during that time did
not reveal any visible signs of injury.
78.
Mr. Makki was arrested at his home on 27 March 2011 by officials who duly disclosed
their identity and read out the arrest warrant issued against him. He was brought before
prosecutors on 1, 11 and 13 April 2011, when he confessed to some of the charges. An
examination showed that he was not suffering from any injuries.
79.
Prosecutors referred the above-mentioned individuals to the National Safety Court of
First Instance, which, on 22 June 2011, in their presence, sentenced Mr. Mushaima,
Mr. Ismaeel and Mr. Makki to life imprisonment and Mr. Mahroos to 15 years in prison. The
four individuals appealed, but, on 28 September 2011, the National Safety Court of Appeal
upheld the ruling. They then appealed to the Court of Cassation and, while the Court was
examining the case, the Public Prosecution Service dropped the charges relating to the
incitement of hatred towards the system of government, broadcasting fake news and
malicious rumours and inciting non-compliance with the law. Eventually, on 30 April 2012,
the Court overturned the previous verdict and referred the case to the Supreme Court of
Appeal.
80.
The case was heard before the Supreme Court of Appeal in the presence of lawyers
representing the four men who had appealed. The lawyers were able to make their
submissions. On 4 September 2012, the Court acquitted Mr. Mahroos on the charge of
communicating with a foreign State. The Court upheld the rest of the original ruling.
81.
The four men appealed that verdict to the Court of Cassation, which, on 7 January
2013, ruled to accept the appeals formally, to reject them on the merits and to uphold the
original ruling. In its final ruling, the Court did not rely on the confession of Mr. Mushaima
but satisfied itself of his guilt on the basis of other evidence. The final ruling convicting
Mr. Ismaeel was based not on his own statements but on other evidence.
82.
The Special Investigation Unit has initiated investigations into the allegation that
Mr. Mushaima was subjected to torture to force him to confess. Beginning on 23 October
2012, the Unit attempted to question him about the details of those allegations. Mr. Mushaima
refused to make any statement to the Unit, despite having received assurances of its
independence. He was questioned on 20 and 24 March 2011 and, as noted in the record of
his interrogation, confirmed that his statements had been made without compulsion.
83.
The Unit also conducted investigations into three complaints concerning a denial of
medical care to Mr. Mushaima. In none of the statements that Mr. Mushaima made during
the investigations did he claim to have suffered torture. The Unit made the arrangements
necessary to ensure that Mr. Mushaima would receive the medical care that he required, in
accordance with the Reform and Rehabilitation Institutions Act.
84.
Following a complaint submitted on 6 July 2014, to the effect that Mr. Mushaima was
not receiving his prescribed treatment on time, the Ombudsman established that
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Mr. Mushaima was attending his medical appointments regularly and that there was no
wrongdoing on the part of the staff of the Ministry of Interior.
85.
Following a complaint filed on 5 August 2018, to the effect that the health of
Mr. Mushaima was deteriorating and that he was being prevented from attending his medical
appointments, the Ombudsman established that Mr. Mushaima had not attended his medical
appointments because he had refused to wear metal restraints, as required by the regulations
of the place of detention. Mr. Mushaima also claimed that he had not been allowed to receive
family visits because of his refusal to be searched or to wear handcuffs. The mechanisms
applied in that regard are in line with the highest international standards governing body
searches.
86.
Following requests received on 13 January 2020 for the provision of health care and
the consideration of alternatives to metal restraints, the Ombudsman contacted the prison
administration and recommended that, as an exception, Mr. Mushaima be allowed to attend
a medical appointment at an external hospital without wearing handcuffs. The Ombudsman
also verified that the administration’s mechanisms for regulating visits and for conducting
body searches of inmates were in line with the highest international standards.
87.
On 11 March 2020, the Ombudsman received a complaint concerning the state of
Mr. Mushaima’s health. Mr. Mushaima refused to be interviewed. The Ombudsman then
enquired with the health department about the care that Mr. Mushaima was receiving and
learned about the tests and monitoring at internal and external clinics that he was undergoing.
Following complaints received on 23 October 2022 and 16 April and 16 July 2023 concerning
medical negligence, lack of adequate health care and denial of outdoor exercise, the
Ombudsman established that Mr. Mushaima was undergoing regular medical examinations,
as required, and that he was receiving excellent medical care. The Ombudsman was informed
that Mr. Mushaima was able to move around his room without restriction and to open his
window. In addition, Mr. Mushaima had a dental appointment on 26 March 2023, but he
refused to attend.
88.
With reference to the Convention against Torture, articles 19 (d) and 20 (d) of the
Constitution and article 208 of the Criminal Code, the Government rejects the allegations of
abuse and ill-treatment. It also notes that allowing inmates to contact their families is a
fundamental right as guaranteed in article 45 of Act No. 18 of 2014 promulgating the Reform
and Rehabilitation Institutions Act.
89.
The administration of the reform and rehabilitation centre denies the allegations
concerning a dispute between Mr. Mushaima and members of the public security forces at
Kanoo Medical Centre. Mr. Mushaima was admitted to Kanoo Medical Centre on doctor’s
orders so as to preserve his health.
90.
The General Directorate of Reform and Rehabilitation Centres affirms that no
alternative sentence was offered to Mr. Mushaima in exchange for conditions or restrictions
on his release. Whether an alternative sentence can be imposed on Mr. Mushaima is a matter
that can be decided only by the sentencing judge.
91.
On 3 August 2023, the Ombudsman received an application on behalf of Mr. Mahroos
concerning a request for urgent medical care following a sharp deterioration in the state of
his health. The enquiries are ongoing.
92.
On 11 January 2016, the Ombudsman received a request to allow Mr. Mahroos to see
an orthopaedist. Following an enquiry, the Ombudsman discovered that Mr. Mahroos had an
upcoming appointment and that he had a weekly session of physiotherapy. Mr. Mahroos’s
medical file shows that he received health care regularly and often in 2016, that he attended
the prison clinic and the military hospital and that he received the necessary prescription
drugs.
93.
On 15 May 2017 and 8 August 2018, further requests were received from
Mr. Mahroos’s family. The Ombudsman took the steps necessary to ensure that he received
the correct medication.
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94.
The Government rejects allegations that Mr. Mahroos has been denied specialist
treatment for his chronic condition and notes that he attended approximately 20 medical
appointments.
95.
The Special Investigation Unit has initiated an inquiry into allegations that
Mr. Ismaeel was subjected to torture. The Unit went to Mr. Ismaeel’s place of detention
several times, first on 23 October 2012, to question him about the details of those allegations.
However, Mr. Ismaeel refused to make any statement to the Unit, despite assurances of its
independence. Mr. Ismaeel was questioned on 24 March 2011 and, as noted in the record of
his interrogation, confirmed that his statements had been made without compulsion or
coercion.
96.
On 13 April 2023, the Ombudsman received a complaint regarding a request not to
place metal restraints on Mr. Ismaeel, as he uses crutches to walk. Following an enquiry, it
was concluded that, owing to the state of his health, Mr. Ismaeel already attended his medical
appointments without metal restraints.
97.
On 8 December 2022, the Ombudsman received a complaint that Mr. Ismaeel had not
been allowed to attend an appointment with an ophthalmologist owing to his refusal to wear
metal restraints. A study of his medical file demonstrated that he had undergone the necessary
examinations and tests. The file also showed that the state of his health was stable and that
he was suffering from several chronic diseases for which he was undergoing periodic
check-ups. The Ombudsman also enquired as to whether Mr. Ismaeel had been placed in
metal restraints when taken to external clinics and found that he had been transported without
the use of restraints.
98.
In 2013, the Ombudsman received two complaints from lawyers representing
Mr. Ismaeel concerning a refusal on the part of the administration of the reform and
rehabilitation centre to allow them to visit their client. Enquiries with the competent authority
revealed that, as the requested visit was not related to any case pending before the courts, it
was subject to the discretion of the administration.
99.
On 6 November 2013, acting on its own accord, the Office of the Ombudsman
launched an investigation into a newspaper report indicating that the state of Mr. Ismaeel’s
health was worsening and that he was not receiving adequate medical care. The Ombudsman
went to the reform and rehabilitation centre to interview Mr. Ismaeel. The Ombudsman also
approached the health department under the Ministry of Interior to obtain Mr. Ismaeel’s
medical file as well as details of his past and scheduled medical appointments. The Office of
the Ombudsman found that appointments had been made with consultants of the Bahrain
Defence Force Hospital.
100.
The Government deems to be false the allegations that, on 1 December 2022,
Mr. Ismaeel was prevented from attending an appointment with an ophthalmologist, that, in
the same month, the administration of Jau Reform and Rehabilitation Centre imposed stricter
restrictions on Mr. Ismaeel’s movements and that, as of 2023, he continues to face
life-threatening medical neglect. He receives the necessary health care. The Government
notes that, between February and July 2023, he attended 14 medical appointments.
101.
On 28 September and 8 December 2022, the Ombudsman received a complaint on
behalf of Mr. Makki concerning an attempted assault against him and a lack of appropriate
health care. Mr. Makki refused to be interviewed. Having reviewed relevant files and the
closed-circuit television (CCTV) footage, the Ombudsman found that the state of
Mr. Makki’s health was stable and that health appointments to treat chronic conditions were
scheduled for him on a regular basis. Moreover, the CCTV footage proved that he had not
been subjected to any assault.
102.
On 16 April 2023, the Ombudsman received a request for health-care assistance on
behalf of Mr. Makki, who refused to be interviewed. The Ombudsman reviewed Mr. Makki’s
medical file, which showed that he had undergone tests and specialist treatment. Regular
check-ups had also been scheduled for Mr. Makki during that time, but he had refused to
attend.
103.
On 27 September 2022, Mr. Makki verbally assaulted a member of the general
security forces working at the reform and rehabilitation centre. That constituted grounds for
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a charge of insulting a public official, and a report on the incident was filed as case
No. 558/2022. Mr. Makki was transferred to the security centre so that the necessary legal
proceedings could be completed.
104.
Mr. Makki receives comprehensive health care. The Government lists approximately
18 specialist appointments scheduled for him between January and August 2023. The prison
administration provides him with everything necessary for his welfare, including personal
effects.
105.
The four individuals who were arrested for terrorist offences were brought before the
judicial authorities and prosecutors. Law enforcement officials have a duty to ensure that
there is a valid arrest warrant, which must be shown to the person being arrested. That is
consistent with legal practice and article 61 (1) of Decree-Law No. 46 promulgating the Code
of Criminal Procedure and the amendments thereto. Consequently, claims that the arrests
were carried out without the presentation of arrest warrants are false.
106.
The Government reaffirms its commitment to human rights and to the consolidation
of justice and the rule of law, in accordance with the provisions of the Constitution,
international treaties and national laws. It gives effect to that commitment by ensuring that
all inmates are provided with comprehensive health care and enabling them to communicate
with their families, without any discrimination on grounds of gender, origin, language or
religion or belief.
107.
The State has also complied with its international obligations by enacting national
legislation that envisages aggravated penalties intended to protect society. In addition, it has
created independent oversight bodies to investigate allegations of torture. These are the
Special Investigation Unit, which was established by Decision No. 8 of 2012 of the Attorney
General, and the Office of the Ombudsman, which was established by Royal Decree No. 27
of 2012 and which, under that Royal Decree, operates with complete independence.
Furthermore, the National Institute for Human Rights and the Commission for the Rights of
Prisoners and Detainees have the authority to visit detention centres to monitor conditions
for inmates and to ensure that they are not being subjected to torture.
(c)
Additional comments from the source
108.
In its additional comments of 11 October 2023, the source reiterates that the four men
were arrested without being shown a warrant and without being informed of the reason for
the arrest and that they were forcibly disappeared, denied access to their lawyer and not
brought promptly before a judge. Moreover, they were all subjected to severe torture to
coerce confessions. As discussed below, the source provides further details to rebut the
Government’s claims, emphasizing that the four individuals are subject to retaliatory
measures, such as denial of medical care and solitary confinement.
2.
Discussion
109.
The Working Group thanks the source and the Government for their submissions.
110.
In determining whether the deprivation of liberty of the four men is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case for a breach of international
law constituting arbitrary detention, the burden of proof should be understood to rest upon
the Government if it wishes to refute the allegations. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.2
(a)
Category I
111.
The source submits that all four individuals were arrested without being presented
with a warrant or informed of the reasons for the arrest and were not promptly brought before
a judge. The Government denies that claim, noting that the four individuals were arrested in
connection with terrorist crimes and presented to the judicial authorities and the Public
Prosecution Service, which – represented by a judicial officer – in turn ensured the existence
2 A/HRC/19/57, para. 68.
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11
of valid arrest warrants and their presentation to the persons against whom they had been
issued, in conformity with the law. The Government submits that the arresting officers
disclosed their identities and informed the four individuals of the content of the arrest
warrants issued against them and adds that they were not arrested without the presentation of
arrest warrants.
112.
In its additional comments, the source argues that, while the Government submits that
the officers disclosed their identities and informed the men of the content of the arrest
warrants issued against them, that claim fails to respond to the fact that, at the time of arrest,
none of the four defendants was presented with an arrest warrant or any legal proof of the
existence of an arrest warrant, nor were they informed of the reason for their arrest. In the
case of Mr. Mushaima, he asked whether there was any arrest warrant or summons from the
court but did not receive a response. Having examined the submissions from both parties, the
Working Group considers that the version of events put forward by the source is the most
credible, on the basis of its detailed submissions regarding the circumstances of the arrests
and its additional comments. Although the Government had access to the arrest warrants that
it claims were presented during the arrests, it has provided no details concerning the warrants
(for example, the identity of the issuing judge, the warrant number or the alleged offences).
113.
As to the conflicting positions presented, the Working Group is inclined to accept the
source’s assertion on the basis of its detailed submissions regarding the circumstances of the
arrests and its additional comments. Pursuant to article 9 (1) of the Covenant, no one is to be
deprived of liberty except on such grounds and in accordance with such procedure as are
established by law. To establish a legal basis for deprivation of liberty, the authorities must
invoke that legal basis and apply it to the circumstances of the case.3 The international norms
on detention include the right to be presented with an arrest warrant or equivalent document,
except in cases of arrests that are made in flagrante delicto, under articles 3 and 9 of the
Universal Declaration of Human Rights, article 9 (1) of the Covenant4 and principles 2, 4 and
10 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment. Any form of detention or imprisonment should be ordered by, or subject to
the effective control of, a judicial or other authority under the law, whose status and tenure
should afford the strongest possible guarantees of competence, impartiality and
independence, in accordance with principle 4 of the Body of Principles. Consequently, the
Working Group finds a violation of article 9 (1) of the Covenant. The Working Group has
consistently stated that an arrest is arbitrary when it is carried out without the arrested person
being informed of the reasons for the arrest. 5 The reasons for the arrest must be given
immediately upon arrest, and those who are being arrested must be promptly informed of any
charges against them.6 Consequently, the Working Group finds a violation of article 9 (2) of
the Covenant. The source, in its additional comments, reiterates that Mr. Mushaima was
reportedly tried without having been informed of the charges against him.
114.
The source makes unrefuted claims that the four men were not presented to a judicial
authority within 48 hours of arrest. According to article 9 (3) of the Covenant, anyone
arrested or detained on a criminal charge is to be brought promptly before a judge. As the
Human Rights Committee has noted, 48 hours is ordinarily sufficient to satisfy the
requirement of bringing a detainee “promptly” before a judge following his or her arrest; any
longer delay must remain absolutely exceptional and be justified under the circumstances.7
In the absence of a rebuttal by the Government, the Working Group concludes that the
information provided indicates that the men were not brought before a judicial authority
within 48 hours of arrest, in violation of article 9 (3) of the Covenant.
3 See opinions No. 9/2019, No. 33/2019, No. 46/2019 and No. 59/2019.
4 Opinion No. 88/2017, para. 27.
5 Opinions No. 10/2015, para. 34; No. 46/2019, para. 51; No. 59/2019, para. 46; and No. 46/2020,
para. 40.
6 Human Rights Committee, general comment No. 35 (2014), para. 27. See also opinion No. 30/2017,
paras. 58 and 59.
7 Human Rights Committee, general comment No. 35 (2014), para. 33. See also CCPR/C/BHR/CO/1,
paras. 39 and 40.
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115.
Furthermore, the source makes unrefuted claims about the manner in which the men
were arrested, which, in the view of the Working Group, compounds the illegality of their
arrests and the arbitrariness of the detentions. The Government fails to respond to the
allegations relating to the searches conducted without a warrant in the homes of the four men.
While it is unclear whether any material seized during the illegal searches was used during
the legal proceedings, such conduct further demonstrates that the authorities’ failure to follow
proper procedures compounded the arbitrary nature of the detentions.
116.
While the source does not make the specific argument, the Working Group reiterates
that it is a well-established norm of international law that pretrial detention should be the
exception and not the rule and should be ordered for the shortest time possible. Liberty is
recognized under article 9 (3) of the Covenant as the core consideration, with detention
merely as an exception. Detention pending trial must thus be based on an individualized
determination that it is reasonable and necessary for such purposes as to prevent flight,
interference with evidence or the recurrence of a crime. In the present case, the Working
Group concludes that an individualized determination of the four men’s circumstances was
not carried out. As a result, their detention lacked a legal basis and was ordered in violation
of article 9 (3) of the Covenant.
117.
As reiterated by the source in its additional comments, the Government has not
responded to the allegations of incommunicado detention and enforced disappearance. The
Working Group has repeatedly asserted that holding persons at secret, undisclosed locations
and in circumstances undisclosed to their family members violates their right to contest the
legality of their detention before a court or tribunal under article 9 (4) of the Covenant.
Enforced disappearances contravene articles 9 and 14 of the Covenant and constitute a
particularly aggravated form of arbitrary detention.8 Consequently, the rights of the four
individuals to an effective remedy under article 8 of the Universal Declaration of Human
Rights and article 2 (3) of the Covenant were also violated. In addition, they were placed
outside the protection of the law, in violation of their right to be recognized as persons before
the law under article 6 of the Universal Declaration of Human Rights and article 16 of the
Covenant.
118.
Judicial oversight of any detention is a central safeguard for personal liberty and is
critical in ensuring that detention has a legitimate basis. In the circumstances of their pretrial
detention, the four men were unable to challenge the lawfulness of their detention before a
court and, consequently, their rights under article 9 (4) of the Covenant were violated.
119.
The Working Group recalls that the rights of detainees to communicate with the
outside world and to be visited by family members are fundamental safeguards against any
attempts by the authorities to violate their human rights, including by torture or any other
ill-treatment and enforced disappearance. The Human Rights Committee has observed that
giving prompt and regular access to family members, as well as independent medical
personnel and lawyers, is an essential and necessary safeguard for the prevention of torture
and for protection against arbitrary detention and infringement of personal security.9 Denial
of the rights to be visited by and correspond with family members and to be given adequate
opportunities to communicate with the outside world, subject to reasonable conditions and
restrictions, as specified by law or lawful regulations, is contrary to principles 15 and 19 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment and rules 43 (3) and 58 (1) of the Nelson Mandela Rules.
120.
On the basis of the foregoing, the Working Group finds that the four men were
detained without any legal basis, thus rendering their detention arbitrary under category I.
(b)
Category II
121.
The source submits that the four individuals were arrested for participating in
pro-democracy protests and exercising their freedom of expression, in violation of articles 19
and 20 of the Universal Declaration of Human Rights and articles 19, 21 and 22 of the
8 Human Rights Committee, general comment No. 35 (2014), para. 17. See also opinions No. 5/2020,
para. 74; No. 6/2020, para. 43; and No. 11/2020, para. 41.
9 Human Rights Committee, general comment No. 35 (2014), para. 35.
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13
Covenant, thus rendering their detention arbitrary under category II. The Government’s
actions were punitive, targeting the four individuals’ fundamental rights. While the
Government, in its response, claims that they had engaged in terrorist activities and attempted
to overthrow the Government, it does not adequately substantiate that position. The source
reiterates that the Government’s case was based solely on confessions obtained under duress
and did not include any evidence of their alleged criminal activities.
122.
The Working Group recalls that the Human Rights Committee has expressed concern
about the “serious restrictions imposed on freedom of expression and the large number of
arrests and prosecutions of individuals criticizing State authorities or political figures” in
Bahrain.10 Referencing a wide range of broad and vague provisions in the Criminal Code of
Bahrain, the Committee noted that the country “regularly avails itself of legal provisions
making assemblies illegal to disperse protests violently” and make arrests.11 The Working
Group recalls that the Human Rights Committee has recognized freedom of expression as
essential for the full development of an individual and, in its general comment No. 34 (2011),
described that right as an indispensable element of democratic society and “the vehicle for
the exchange and development of opinions”. Included in that freedom, according to the
Committee, is “the right of individuals to criticize or openly and publicly evaluate their
Governments without fear of interference or punishment”.12
123.
The Working Group considers that, by participating in a peaceful pro-democracy
protest, the four men were exercising their right to freedom of opinion and expression, which
protects the holding and expression of opinions, including those that are critical of, or not in
line with, government policy. They were also exercising their right to peaceful assembly and
association with other like-minded individuals involved in the protests.
124.
The source has presented a credible and unrefuted case that the permissible restrictions
on the rights exercised by the four individuals, as set out in articles 19 (3), 21 and 22 (2) of
the Covenant, do not apply in the present case. The Working Group finds that the four men
were detained for the peaceful exercise of their rights under articles 19 and 20 of the
Universal Declaration of Human Rights and articles 19, 21 and 22 of the Covenant. The
Working Group refers the case to the Special Rapporteur on the promotion and protection of
the right to freedom of opinion and expression and the Special Rapporteur on the rights to
freedom of peaceful assembly and of association. The Working Group thus finds that the
detention of the four individuals is arbitrary under category II.
(c)
Category III
125.
Given its finding that the detention of the four men is arbitrary under category II, the
Working Group emphasizes that no trial should have been held. However, on 22 June 2011,
Mr. Mushaima, Mr. Ismaeel and Mr. Makki were sentenced to life imprisonment and
Mr. Mahroos to 15 years’ imprisonment, and the sentences were upheld on 7 January 2013.
126.
The source submits that the four individuals were tortured during their interrogations,
denied access to legal counsel throughout their interrogations and trials, forced to confess
under torture and denied adequate time and facilities to prepare for trial, rendering their
detention arbitrary under category III.
127.
The source states that the four men were denied access to legal counsel during their
interrogations and trials. The Government does not specifically refute those allegations,
although it does make sporadic references to lawyers being present. In the light of the
source’s detailed submissions and the Government’s limited response on the matter, the
Working Group considers that the source has established that the four men did not have
access to a lawyer from the outset of their detention, as well as at other key stages, including
during their interrogations. The Working Group recalls that all persons deprived of their
liberty have the right to legal assistance by counsel of their choice at any time during their
10 CCPR/C/BHR/CO/1, para. 53.
11 Ibid., para. 55.
12 Marques de Morais v. Angola (CCPR/C/83/D/1128/2002), para. 6.7.
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detention, including immediately after apprehension.13 The Working Group therefore finds
that the four men’s right to prompt recourse to effective legal counsel was denied, in violation
of article 10 of the Universal Declaration of Human Rights and article 14 (1) and (3) (b) and
(d) of the Covenant. The effectiveness of legal counsel is fundamentally related to the
principle of equality of arms, as enshrined in article 11 of the Universal Declaration of Human
Rights and article 14 of the Covenant.
128.
The Working Group is persuaded by the source’s detailed submission that the four
individuals confessed under torture and duress, noting its findings on inadequate legal
assistance as set out above. The burden is on the Government to prove that the statements of
the individuals were given freely,14 but it has not done so adequately. While the Government
submits that the court did not rely, in its final ruling, on Mr. Mushaima’s confession, limiting
itself to other corroborative evidence, or on Mr. Ismaeel’s statements, the Working Group
has repeatedly found that the admission as evidence of statements obtained through torture
renders the entire proceedings unfair.15 In relation to Mr. Mahroos and Mr. Makki, while the
Government does not state that their confessions were used as evidence, they were forced to
confess, in violation of article 14 (3) (g) of the Covenant. Noting the inadequate legal
assistance provided to all four men, the Working Group reiterates that confessions made in
the absence of legal counsel are not admissible as evidence in criminal proceedings. 16
Consequently, their rights to be presumed innocent under article 14 (2) of the Covenant and
not to be compelled to confess guilt under article 14 (3) (g) of the Covenant have been
violated, as has principle 21 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, which protects a detainee from self-incrimination
or compelled confessions.
129.
The Working Group recalls the finding of the Committee against Torture that the
intentional infliction of physical or psychological pressure to obtain a confession constitutes
a violation of articles 2, 15 and 16 of the Convention against Torture. Moreover, the
prosecutor was under an obligation to investigate and report the torture and forced
confessions in accordance with guidelines 12 and 16 of the Guidelines on the Role of
Prosecutors.17 The Working Group is alarmed by the severe mistreatment reportedly faced
by the men in detention and recalls rules 13, 21 and 23 (1) of the Nelson Mandela Rules. It
is alleged that, during the pretrial detention of Mr. Mahroos, officers withheld his medication,
causing him to bleed internally. Furthermore, several United Nations experts have raised
concerns about the alleged denial of adequate health care for serious health conditions to
detainees held in Jau Reform and Rehabilitation Centre, including Mr. Mushaima.18 Noting
the source’s detailed submissions on the denial of medical care, the Working Group recalls
that denial of medical care can constitute a form of torture.19 Given the serious allegations of
torture and ill-treatment, the Working Group refers the present case to the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment.
130.
While the Government submits that, when the four men were brought before the
prosecutors in 2011, no visible injuries were found, and they stated that they did not have any
invisible injuries, the source submits that the four men may have had invisible injuries or
sustained injuries at a later date. The Working Group recalls that, according to the Manual
on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Istanbul Protocol), the absence of physical evidence
13 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, principle 9 and guideline 8; and
Human Rights Committee, general comment No. 35 (2014), para. 35.
14 Human Rights Committee, general comment No. 32 (2007), para. 41.
15 See opinions No. 43/2012, No. 52/2018 and No. 59/2019.
16 See opinions No. 14/2019 and No. 59/2019. See also E/CN.4/2003/68, para. 26 (e); and
A/HRC/45/16, para. 53.
17 Opinions No. 47/2017, para. 29; and No. 63/2020, para. 42.
18 See communications BHR 3/2011, BHR 4/2011, BHR 17/2011, BHR 4/2012 and BHR 1/2019. All
communications mentioned in the present report are available from
https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
19 A/HRC/38/36, para. 18; and opinions No. 20/2022, para. 104; and No. 65/2022, para. 116.
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15
should not be construed as suggesting that torture did not occur, since acts of violence
frequently leave no marks or permanent scars.20
131.
The source accepts the Government’s submission that, in various instances, the men
refused to meet with individuals from the Office of the Ombudsman or the Special
Investigation Unit and clarifies in its additional comments that the Government does not
address the reasons why the four individuals refused to meet with them. According to the
source’s additional comments, the four individuals refused to meet with those bodies because
they were concealing violations and distorting facts.
132.
The Working Group observes that the source’s explanation is consistent with concerns
it has previously raised about the independence and effectiveness of the Special Investigation
Unit.21 In its concluding observations on the combined second and third periodic reports of
Bahrain, in 2017, the Committee against Torture also noted that the investigative bodies of
Bahrain, including the Special Investigation Unit, were not independent or effective.22 The
Working Group observes that the Ombudsman relied on information provided by the very
authorities that were under investigation and does not appear to have an independent means
of conducting its own verifications. As a result, the complaints made do not appear to have
resulted in a resolution of the issues raised. For example, in 2013, in relation to Mr. Ismaeel,
the Ombudsman learned about his condition and met with him. While the Ombudsman
decided that Mr. Ismaeel should receive his medication on time and found that follow-up
specialist appointments had been scheduled, there is no information on whether Mr. Ismaeel
was able to attend those appointments.
133.
Taking those factors into account, the Working Group finds that the violations linked
to the conditions of detention of the four individuals significantly undermined their ability to
properly defend themselves. The Working Group has consistently found that, when it is not
possible for a person who has been subjected to torture or other forms of ill-treatment to
prepare an adequate defence for a trial that respects the equality of arms, that amounts to a
fair trial violation.23 The Working Group thus finds that the violations of the four men’s fair
trial rights are of such gravity as to render their detention arbitrary under category III.
(d)
Category V
134.
According to the source, all four individuals faced discrimination for their political
opinions and religious affiliation and were insulted for their religious affiliation, which
renders their detention arbitrary under category V. They are part of the Bahrain 13, a group
of religious and political opposition leaders arrested in March 2011 for their leading role in
protests. The Government does not deny the allegations of discrimination.
135.
The Working Group has already established that the arrest and detention of the four
men resulted from the exercise of their rights under international law, which renders their
detention arbitrary under category II. It recalls that, when detention has resulted from the
active exercise of civil and political rights, there is a strong presumption that the deprivation
of liberty also constitutes a violation of international law based on political and other views.
The case of Mr. Mushaima was included in the 2012, 2021 and 2022 reports of the
Secretary-General.24 Furthermore, the Working Group has found that another member of the
Bahrain 13 was arbitrarily detained on, among other grounds, a discriminatory basis owing
to his opinions.25
136.
On the basis of the foregoing and, in particular, the four men’s role as members of the
Bahrain 13, the previous arrests of some of them and insults about their religious affiliation
20 Opinion No. 53/2018, para. 76; and Manual on the Effective Investigation and Documentation of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol)
(revised, 2022), para. 393.
21 Opinions No. 4/2021, para. 72; No. 49/2022, para. 97; and No. 2023/2, para. 100.
22 CAT/C/BHR/CO/2-3, para. 28.
23 Opinions No. 59/2019, para. 69; and No. 65/2022, para. 117.
24 A/HRC/21/18, paras. 51 and 53; A/HRC/48/28, annex II, paras. 5 and 6; and A/HRC/54/61, annex II,
paras. 11–13.
25 See opinion No. 2/2023.
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during interrogation or torture, the Working Group concludes that they were deprived of their
liberty on discriminatory grounds, namely, their political or religious beliefs, contrary to
articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the
Covenant. Their detention is arbitrary and falls within category V.
(e)
Concluding remarks
137.
While the Working Group notes the Government’s detailed responses regarding the
activities of the Ombudsman in connection with the alleged lack of access to medical care,
the source, in its additional comments, strongly rebuts those responses and notes certain
inconsistencies in them. The Working Group also notes with concern that, despite repeated
complaints, in the vast majority of cases, if not in all of them, the complaints were dismissed.
In some instances, while follow-up recommendations were made, there is no confirmation
that the recommended action was taken. In relation to the use of handcuffs and the need to
be handcuffed while attending medical appointments, the Working Group finds the
Government’s response, while detailed, to largely confirm those allegations.
138.
On 18 July 2021, Mr. Mushaima was reportedly transferred to Kanoo Medical Centre,
where he remains.26 His stay at the centre has been described as “solitary confinement”, as
he is reportedly being denied the right to call his family. The Working Group recalls that,
according to rule 45 of the Nelson Mandela Rules, solitary confinement must be used only in
exceptional cases as a last resort, for as short a time as possible, subject to independent review
and with the authorization of a competent authority. Prolonged solitary confinement in excess
of 15 consecutive days is prohibited under rules 43 (1) (b), 44 and 45 of the Nelson Mandela
Rules. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment has deemed that prolonged solitary confinement in excess of 15 consecutive days
may amount to torture, as described in article 1 of the Convention against Torture.
Mr. Ismaeel reportedly continues to face life-threatening medical negligence and the
withdrawal of necessary medication. Serious concerns persist regarding the deteriorating
health of Mr. Makki and Mr. Mahroos, owing to the denial of medical care.
139.
All four men are above the age of 60 and have been arbitrarily detained for over a
decade. In the light of the numerous concerns expressed about their health, and despite the
Government’s view that they are in good health, the Working Group is compelled to remind
the Government of its obligation under article 10 (1) of the Covenant and rules 1, 24, 27 and
118 of the Nelson Mandela Rules that all persons deprived of their liberty must be treated
with humanity and with respect for their inherent dignity, including by being allowed to enjoy
the same standards of health care as are available in the community. The Working Group
refers the case to the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health and the Independent Expert on the
enjoyment of all human rights by older persons.
140.
The present case follows the pattern of numerous other cases brought before the
Working Group in recent years concerning arbitrary deprivation of liberty in Bahrain.27 The
Working Group notes that many of the cases involving Bahrain follow a familiar pattern of
arrest without a warrant, pretrial detention with limited access to judicial review, denial of
access to lawyers, forced confessions, torture and ill-treatment, and denial of medical care.
The Working Group recalls that, under certain circumstances, widespread or systematic
imprisonment or other severe deprivation of liberty in violation of the rules of international
law may constitute crimes against humanity.28
141.
The Working Group would welcome the opportunity to conduct a country visit to
Bahrain. It most recently visited Bahrain in October 2001 and considers that it is now an
appropriate time to conduct another visit.
26 A/HRC/51/47, annex II, para. 12.
27 Opinions No. 31/2019, No. 59/2019, No. 73/2019, No. 5/2020, No. 41/2020 and No. 87/2020.
28 Opinion No. 47/2012, para. 22.
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3.
Disposition
142.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Hasan Mushaima, Abdullah Isa Abdulla Mahroos,
Abdulwahab Husain Ali Ahmed Ismaeel and Abduljalil Radhi Mansoor Makki, being
in contravention of articles 2, 6–11, 19 and 20 of the Universal Declaration of Human
Rights and articles 2, 9, 14, 16, 19, 21, 22 and 26 of the International Covenant on
Civil and Political Rights, is arbitrary and falls within categories I, II, III and V.
143.
The Working Group requests the Government of Bahrain to take the steps necessary
to remedy the situation of Mr. Mushaima, Mr. Mahroos, Mr. Ismaeel and Mr. Makki without
delay and bring it into conformity with the relevant international norms, including those set
out in the Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights.
144.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Mushaima, Mr. Mahroos, Mr. Ismaeel
and Mr. Makki immediately and accord them an enforceable right to compensation and other
reparations, in accordance with international law.
145.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Mushaima, Mr. Mahroos, Mr. Ismaeel and Mr. Makki and to take appropriate measures
against those responsible for the violation of their rights.
146.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, the Special Rapporteur on the promotion and protection of the right
to freedom of opinion and expression, the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, the Independent Expert on the enjoyment of all human
rights by older persons and the Special Rapporteur on the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health.
147.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
148.
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. Mushaima, Mr. Mahroos, Mr. Ismaeel and Mr. Makki have been
released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Mushaima,
Mr. Mahroos, Mr. Ismaeel and Mr. Makki;
(c)
Whether an investigation has been conducted into the violations of the rights
of Mr. Mushaima, Mr. Mahroos, Mr. Ismaeel and Mr. Makki and, if so, the outcome of the
investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Bahrain with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
149.
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.
150.
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
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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.
151.
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.29
[Adopted on 16 November 2023]
29 Human Rights Council resolution 51/8, paras. 6 and 9.