Ombudsman photoOn 2 June 2016, the Ombudsman of the Ministry of Interior of the Kingdom of Bahrain released its annual report for 2015/2016. The report documents the Ombudsman’s activities throughout the year, describing an office that diligently works to investigate and resolve human rights abuses. We remain concerned that deep and systemic flaws in the Ombudsman’s mandate, office, and practices continue to compromise its ability to monitor and resolve human rights abuses. ADHRB has analyzed the Ombudsman’s reports against its own experience and against publicly available fact, and concludes that substantial issues remain that prevent the Ombudsman from adequately investigating and resolving serious human rights abuses in Bahrain.

Findings

In many worrying respects, the Ombudsman’s latest report continues many of the issues seen in previous iterations. The Ombudsman claims to be independent from the MOI; its mandating legislation makes it dependent on the MOI for funding and authority. The report claims that it has aided in the resolution of serious cases of abuse; Ombudsman investigations resulted in zero convictions, while suspected abusers are transferred to administrative positions instead of suspended from active duty. The Ombudsman claims that it has achieved growing trust among the population; individuals that spoke to ADHRB stated that they feared retaliation for submitting complaints to the Ombudsman, and that the ability of the government to use Ombudsman investigative findings against complainants negatively affected their ability to trust the Ombudsman.

The Ombudsman’s work has focused on issues that, while important, do not address the central issues of ill-treatment, torture and unfair detention, and thus diverts attention from these issues. For instance, the Ombudsman cited its ability to provide access to medicine, to provide clarification of legal rights, and to request that the MOI transfer suspected abusive officers to administrative roles. The Ombudsman also cited its recommendation that a detainee’s route through the criminal justice system be documented through the comprehensive use of CCTVs.

Perhaps most worrying is the Ombudsman’s situation within the Bahraini human rights mechanism as a whole. The Ombudsman has limited competence in dealing with day-to-day issues that may occur throughout the Bahraini criminal justice system, due in part to its reliance on an SIU that refuses to prosecute and convict officers guilty of violence severely compromises the ability of the Ombudsman to eliminate the use of torture and abuse in Bahrain’s prisons. This structure appears to be intentional on the part of the government; the SIU has no public reporting obligation, allowing the government to let criminal investigations linger until the evidence evaporates and conviction is impossible, as evidenced by the zero convictions that have resulted from Ombudsman referrals in this reporting period.  Without itself having criminal prosecutorial powers, which would have to be granted by the Government of Bahrain, the Ombudsman will never be able to affect weightier human rights issues and achieve accountability without first attaining unlikely reform of the SIU.

The net effect of all of these issues is that the Ombudsman continues to be a deeply flawed organization. While capable of achieving relief in some areas, it has neither the power nor demonstrable willingness to effectively address the most significant issues in Bahrain’s criminal justice system, especially torture. Until it demonstrates ability to obtain convictions for abuses, investigate the use of its casework against the best interests of victims, and effectively criticize the Ministry of Interior, it cannot be considered a credible human rights institution.

Recommendations

To the Government of the Kingdom of Bahrain:

  • Address the dependence of the Ombudsman upon the Ministry of Interior (MOI) by amending Decree 27/2012 establishing the Ombudsman Office of the Ministry of Interior to guarantee its total independence, by removing all authorities of the Ministry of Interior over the Ombudsman as contained within articles 2 4, 5, 6, 7, 16 and 17.
  • Address the competence of the Special Investigations Unit by requiring the SIU to issue periodic public reports on its activities and provide to the Ombudsman progress reports regarding investigations referred to the SIU by the Ombudsman.
  • Provide to the Ombudsman formal ability to decide upon and implement administrative punishments without requiring approval from the MOI; provide the Ombudsman with the power to suspend officers suspected of abuse pending completion of their criminal investigation.

To the Ombudsman of the Ministry of Interior:

  • Take proactive steps to eliminate instances of retaliations against persons that complain to the Ombudsman; fully investigate other agencies’ misuse of Ombudsman documents, including by identifying any criminal leaks that may have occurred allowing other agencies to obtain Ombudsman documents, especially in the case of Mohammad Ramadan.
  • Publicly criticize the SIU when it fails to accomplish meaningful investigations or prosecutions based on Ombudsman recommendations; refer back to the SIU and Public Prosecution any cases of deaths in detention in which the Ombudsman believes findings of no criminal responsibility to be in error.
  • Credibly investigate all allegations of abuse; report anonymized data concerning the types of complaints that the Ombudsman receives and actions taken towards their resolution, as is done with help requests; clarify data concerning repeat complainants to indicate whether their repeat complaints concern new issues or reiterate unresolved problems.
  • Remove from office all staff that held office in either the Ministry of Interior or the Ministry of Justice during the events following February 2011, including Ombudsman Nawaf Al Moawdah.
  • Take steps towards the installation of CCTVs in all areas in which acts of torture are regularly alleged, including the General Directorate of Criminal Investigations; recommend the installation of body cameras upon all MOI agents or employees that regularly interact with the public.
  • In the absence of reform allowing the Ombudsman to unilaterally implement administrative punishment, recommend suspension from active duty of any officers credibly suspected of abuse pending the resolution of their criminal investigations.
  • Expedite investigations into deaths in custody in order to hasten recommendations that may prevent future deaths;
  • Seek guidance from established Ombudsman and other credible human rights institutions on best practices dealing with substantial human rights issues.

Discussion

Independence
Any critique of the Ombudsman must begin with the office’s lack of independence from the Ministry of Interior (MOI). Since its inception, the Ombudsman has continuously claimed to have independence from the MOI; its latest report continues this trend, stating that the Ombudsman is “financially and administratively independent” from the Bahraini government and MOI in particular.

However, the Ombudsman is not independent from the government. Royal Decree 27 of 2012, which establishes the Ombudsman and his powers, states under article 2(1) that the Ombudsman and his deputy are appointed by the Prime Minister on the recommendation of the Minister of Interior. Article 7 states that if the Ombudsman or his deputy fail to exercise their mandate, they may be removed from office subject to the recommendation of the Minister of Interior and approval of the Prime Minister. The law does not define failure. Article 16 of the same decree states that the Ombudsman has sole authority to dispense of his budget, but that this budget is allocated from the Ministry of Interior’s finance.[1] Further, the head of the Ombudsman, Nawaf Al Moawdah, is a former prosecutor that maintained office during the prosecution of dissenters following the events of March 2011. The Ombudsman therefore relies on the Ministry of Interior both for his position and his financial security.

Relationship with the SIU
The Ombudsman’s relationship with the Special Investigations Unit (SIU) is particularly troubling. In the report, the Ombudsman clarified its relationship with the SIU, which is charged with criminally investigating, charging, and aiding in the trial of credibly alleged abusive officers. The Ombudsman stated that, during such time as the SIU is conducting an investigation, the Ombudsman by necessity ceases its own investigation so as not to interfere or prejudice the more important criminal inquiry. However, the SIU presently has an unacceptable track record of investigating potential abusers, and has achieved a remarkably small number of convictions despite systemic issues of torture and abuse in Bahrain’s criminal justice system. The Ombudsman claims to have sent 55 complaints to the SIU in 2015-16 alone; these have thus far resulted in zero convictions. The SIU additionally has systemic flaws that substantially prejudice the Unit towards finding in the favor of MOI officers, including a severe lack of independence from the Public Prosecution Office that compromises the considerable majority of SIU investigations.

Given these flaws, the Ombudsman’s reliance upon the SIU for the resolution of serious cases of abuse often leads to the perpetuation of abuse rather than the conclusion. Resolving this issue would require substantial reformation of the SIU. However, in order for the Ombudsman to be able to compensate for SIU failures, the Ombudsman should be empowered with disciplinary authority over MOI agents found by Ombudsman investigations to have committed acts of abuse, chiefly including the power to suspend such agents from active duty until the conclusion of their legal proceedings. The Ombudsman should also be willing to criticize the SIU when the SIU fails to meaningfully investigate potential criminal abuse based on Ombudsman recommendations.

Additionally, while a certain amount of deference towards criminal investigations is understandable, the inability of the Ombudsman to investigate where the SIU has initiated investigation allows the SIU to effectively suspend Ombudsman investigations. As the SIU has no public reporting mandate, an SIU investigation can effectively bar a victim from receiving the results of a complaint that it brought to the Ombudsman; the SIU can therefore halt or stall an investigation as it pleases, as it has no transparency requirements. With this in mind, and in order to resolve the issue in lieu of unlikely SIU reform, the Ombudsman should be empowered with the ability to continue examination into criminal elements of complaints for the purposes of administrative discipline.

Working with NGOs
In 2014, ADHRB began engaging the Ombudsman’s complaint mechanism in order to help resolve allegations of serious abuses of the human rights of detainees, chiefly including widespread allegations of torture. The Ombudsman’s office failed to respond until January 2015, when it addressed a handful of issues but refused to comment on allegations of torture. Later that year, ADHRB received information indicating that persons complaining to the Ombudsman had experienced retaliation from members of the MOI. ADHRB thereupon suspended the program.

In late 2015, with the aid of the UN Office of the High Commissioner for Human Rights (OHCHR), ADHRB re-opened its engagement with the Ombudsman. At this point, the Ombudsman began substantively replying to ADHRB communications. The Ombudsman stated that it did not have records of receiving many of the complaints that ADHRB submitted, and in any case had changed its process to include a simpler form for complainants to utilize for filing complaints.

The Ombudsman was at this point able to resolve several issues relating to complaints. In several instances, the Ombudsman appears to have been able to provide detainees with access to medications that they had been denied while in custody. In others, the Ombudsman has been able to locate allegedly missing persons, or establish through documentation that the person had not been disappeared at all.

However, the Ombudsman still has issues with its complaint process. In several occasions, where the Ombudsman’s office stated that it had investigated allegations of abuse and failed to find corroborating evidence, or where the Ombudsman told ADHRB that it had verified with families that such abuse had never occurred, families corresponding with ADHRB stated that the information provided by the Ombudsman was false. In many cases, families accused the Ombudsman of acting too late, so that evidence of abuse would have disappeared from the bodies of alleged victims. Other families stated that they had brought allegations of abuse to the Ombudsman only to have them ignored.

Failure to Investigate Government Misconduct
In February 2016, the European Parliament considered a human rights resolution condemning the death sentences of two Bahraini persons that claim to have been convicted through the use of confessions coerced under conditions of torture.[2] In campaigning against this resolution, the Bahraini ambassador to the European Union (EU) utilized Ombudsman investigatory documents in an attempt to prove that the victims had never been tortured. In this manner, documents created as a result of Ombudsman investigations were used by authorities outside either the Ombudsman or the MoI to campaign against the best interests of the victim. When ADHRB raised these issues to the Ombudsman, the Ombudsman deflected, stating that Ombudsman was not at fault for how its documents were used by other branches of the government. Assuming this to be true, however, the Ombudsman should have opened an investigation into how Ombudsman documents were obtained by employees of the Ministry of Foreign Affairs (MFA). When ADHRB prompted the Ombudsman to open such an investigation, the Ombudsman representative stated that it would take ADHRB’s recommendation under advisement, but refrained from further comment on the issue.

The Ombudsman’s conduct in relation to this issue reflects upon the institution’s lack of independence. In absolving itself of responsibility to investigate, the Ombudsman condoned the actions of the Ministry of Interior in providing the document to the MFA. As a result, the Ombudsman appears to have approved of the manner in which the document was used, thereby allowing documents created from a victim’s complaint to be used against the best interests of said victim. This reveals the Ombudsman’s limited mandate, wherein the government allows Ombudsman investigations to only proceed so far before preventing them from impinging upon government interests.

In order to restore confidence in its ability to act in the best interests of the victim, the Ombudsman should publicly denounce the conduct of the MFA and the Bahraini ambassador to the EU, as well as the leak that must have occurred from the MOI. The Ombudsman should further investigate the leak and undertake appropriate disciplinary action based on the findings of its investigation.

Handling of Complaints and Assistance Requests

Statistics

AHDBR complaints notwithstanding, the Ombudsman indicated that it witnessed an uptick of approximately 9% in complaints from the previous reporting period, stating that it had received 992 investigation requests. The Ombudsman additionally cites that 15% of its complaints this year came from returning complainants. It is presently unclear from the information whether or not these new complaints concerned previously unresolved issues; for this reason, it is recommended that the Ombudsman clarify this issue.

ADHRB is aware from interviewing victims and their families that the issue of retaliations has depressed the number of return complainants; we have on several occasions encouraged the Ombudsman to investigate potential acts of retaliations and to be mindful of its public image regarding the issue. Although it is understandable that investigating retaliations is difficult when victims refuse to report their retaliations to the Ombudsman, the Ombudsman’s refusal to investigate the leak of the Mohammad Ramadan case findings to the Ministry of Foreign Affairs is nonetheless discouraging in this regard. When case findings can be ultimately used against a potential victim, victims will naturally be suspicious of returning to the Ombudsman in the case of new allegations or issues.

Substantive Issues

The Ombudsman appears to be able to resolve certain issues about which it receives complaints, chiefly including medical issues such as accommodation for disability, obtaining access to medicine, providing legal clarification, and providing access to education. The Ombudsman also appears to be able to locate missing persons. In several of the instances that the Ombudsman details in its annual report, the Ombudsman was able to resolve complaints characterized by these issues.

Resolving serious allegations of torture and abuse, however, appears to be beyond the Ombudsman’s capabilities. The Ombudsman does not provide substantive information regarding the composition of complaints; this appears to be intentional, as it does so for assistance requests, where the Ombudsman appears to be more capable of influence. However, as the Ombudsman is legally obligated to submit any serious allegations that would constitute criminal abuse to prosecutorial authorities, it can be surmised from complaints referred to these bodies that the Ombudsman investigated 75 cases of extreme abuse. This number appears to be low; ADHRB’s complaints alone would likely make up a quarter of these cases, assuming that the Ombudsman investigated every ADHRB complaint that was re-submitted in 2016. Of the cases that the Ombudsman referred for prosecution, however, exactly zero have resulted in convictions. Further, the Ombudsman’s reporting regarding disciplinary actions that it itself undertook is opaque; although the Ombudsman’s report gives anecdotal examples of the Ombudsman requesting discipline, it does not divulge statistics beyond stating that it recommended and received administrative discipline in “a number” of cases.

The Ombudsman should undertake more extensive reporting of its complaint process. It should report thoroughly on the composition of complaints as regards subject matter, as it does requests for assistance, and detail the actions that it undertakes in bringing these cases for prosecution. It should additionally provide anonymized statistical information on how many of these complaints resulted in administrative disciplinary action.

Use of CCTVs in Investigations

The Ombudsman’s report took the opportunity to highlight the usefulness of CCTVs in conducting its investigations. In the report, the Ombudsman rightly pointed out that CCTVs are not only useful for determining the veracity of a complaint, but also in determining when complaints have been falsified. However, it is presently unclear whether or not the Ombudsman’s recommendation covers the General Directorate of Criminal Investigations (CID), where ADHRB has found the majority of allegations of abuse to be concerned. Further, the Ombudsman stops short of calling for body cameras to be placed upon all active duty police officers. Given the clarifying effect that such cameras would have upon the detention process, and that these cameras could be used to not only hold accountable officers guilty of abuse but also vindicate those officers who are not, the Ombudsman should make recommendations to these effects immediately.

Discipline

In both its report and in correspondence with ADHRB, the Ombudsman highlighted its ability to transfer to administrative duty MOI agents suspected of abuse until such time as their criminal investigations and/or trials have been resolved. MOI agents in such roles may still have the ability to influence detainee treatment, and may in fact be able to affect investigations. The Ombudsman should therefore additionally have the power to suspend from active duty any MOI agents or employees credibly suspected of abuse pending the resolution of the criminal investigation.

Investigation of Deaths in Detention
The Ombudsman reported on seven deaths in detention, stating that its investigations are again hampered by ongoing criminal investigations undertaken by the Office of the Public Prosecution and the SIU. As a result, the Ombudsman cannot undertake investigation until such time as the SIU and Public Prosecution give it permission to do so. Regardless, in several instances the Ombudsman appears to be considering as suspect several deaths in detention.

ADHRB is unaware of any deaths in detention that would contradict the Ombudsman’s findings. However, it is concerning that several investigations into deaths that occurred nearly one year ago are presently ongoing, and it is therefore recommended that the Ombudsman expedite its investigations into deaths in detention in order to more quickly provide recommendations that may save future lives. The Ombudsman should also in these cases refer cases back to the SIU and Public Prosecution if it believes either of these institutions erred in their initial findings of no criminal wrongdoing.

International Workshops
The Ombudsman spent several pages detailing the workshops that it had attended in order to increase its expertise and ability to resolve human rights complaints. However, many of these meetings were taken with other GCC bodies, including the Kingdom of Saudi Arabia Bureau of Investigation and Prosecution, the United Arab Emirates Judicial Department, and the Gulf Cooperation Council, which are themselves known for committing acts of human rights abuses and should not be considered models of best practices.

Previous Ombudsman Reports
The 2 June report marks the third such report released by the Ombudsman in as many years; previous Ombudsman reporting was characterized by many of the same issues seen in this latest iteration. In 2014, ADHRB analysis showed that the Ombudsman ignored complaints submitted in confidence and ignored the pressing issue of torture. In 2015, ADHRB found that the second Ombudsman report embellished prison conditions, falsified numbers concerning received complaints, and again ignored systemic torture in the Bahraini criminal justice system.

[1] Though Royal Decree 35 of 2013 amended Royal Decree 27, articles 2(1), 7 and 16 were not amended.

[2] European Parliament resolution of 4 February 2016 on Bahrain: the case of Mohammed Ramadan: http://www.polcms.europarl.europa.eu/cmsdata/upload/93b9bd25-9314-489e-a26a-8d6af299be78/P8_TA-PROV(2016)0044_EN.pdf