The United Nations Working Group on Arbitrary Detention (WGAD) has formed an Opinion on 18 September 2020 (No.41/2020) concerning Husain Ali Hasan Khamis and eight other Bahraini citizens, recently published on the website of the Working Group and reflected in its annual report to the Human Rights Council. The Opinion, adopted by the Working Group on Arbitrary Detention at its 88th session, 24-28 August 2020, addresses the cases of nine individuals convicted by the Bharani Fourth High Criminal Court on 16 April 2019, following an unfair mass trial.
The WGAD has found that the cases demonstrate a pattern of warrantless arrest and the use of torture to extract confessions. The defendants were convicted by the Bahraini government for their alleged involvement in a terrorist cell, the Bahraini Hezbollah. The WGAD has determined however, that the imprisonment of the individuals is a violation of several international human rights laws concerning arbitrary detention and has asked the government of Bahrain to take immediate action to remedy the situation. This includes the immediate release of the illegally detained prisoners, compensation and other reparations, including renewal of their identification documents (as proof of restored citizenship) and an expunging of their criminal records in accordance with international law. In the current context of the global COVID-19 pandemic and the threat posed in places of detention, the Working Group has also called upon the Government not to dither, but to take urgent action to ensure the immediate release of the nine individuals.
The WGAD is one of the Special Procedures offices of the UN Human Rights Council. As part of its regular procedures, the Working Group sends allegation letters to governments concerning credible cases of arbitrary detentions. The Working Group may also render opinions on whether an individual or group’s detention is arbitrary and in violation of international law. The WGAD reviews cases under five categories of arbitrary detention: when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (Category I); when the deprivation of liberty results from the exercise of the rights to equal protection of the law, freedom of thought, freedom of opinion and expression, and freedom of assembly, among others (Category II); when violations of the right to a fair trial are so severe that the detention is rendered arbitrary (Category III); prolonged administrative custody for refugees and asylum seekers (Category IV); and when the detention is discriminatory on the basis of birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status (Category V).
In the present Opinion, the WGAD finds that the nine individuals: Husain Ali Hasan Khamis, Qasim Ahmed Ali Hasan AlMalki, Jawad Redha Ahmed Abdulnabi Ahmed AlTarifi, Ali Husain Ahmed Salman Ahmed AlAali, Hasan Ali Abdulla Hasan Salman Fateel, Ahmed Mohamed Hasan Merza Hasan Kadhem, Husain Ali Mohsen Ali Muhana, Mansoor Abdulwahed Hasan Mohamed AlDolabi and Hasan Moosa Jaafar Mohamed Ali, now incarcerated at Jau Prison and the Dry Dock Detention Centre, have been unlawfully convicted and have suffered a slew of illegal human rights violations.
The dates of their arrest range from September 2013 to February 2018. The alleged violations include arrests without a warrant, enforced disappearance and torture. The most common methods of torture include physical beatings, psychological mistreatment – verbal insults and being held for extended periods without knowledge of the charges, threats – both against the detainee and the prisoner’s family and the denigration of the detainee’s religion; one of the defendants (Mr. Ali) was a minor at the time of arrest. As a result of the torture inflicted upon them, several of the defendants falsely confessed.
The defendants were all denied access to their lawyers, or only allowed limited access at certain periods. One of the hearings (Mr. Kadhem) was even conducted in the absence of the accused, with the defendant being detained on a bus during proceedings. Several of the individuals were not permitted to present any evidence in their defence or call witnesses. The nine individuals were also punished through denaturalisation having their citizenship stripped from them, this however was restored by royal order on 21 April 2019. During the process, the defendant’s lawyers raised several defences, including the invalidity of witness testimony, warrantless arrest and searches, and torture with the outcome of forced confessions. The lawyers also argued that the testimony of other defendants is also invalid due to it being extracted by coercion. The Courts roundly rejected this argument and failed to address the issue that under Bharani law, warrants are constitutionally required.
The Court also invoked Bahrain’s counter terrorism-law in order to justify the action taken by the authorities. The legislation stipulates that “if there is sufficient evidence that a person has been charged with an offence stipulated in this law, the defendants shall be detained for a period not exceeding twenty-eight days.”  The fact remains however, that many of the defendants were detained in excess of the 28-day period and were also subjected to enforced disappearance; Husain Ali Hasan Khamis, for example, was initially detained for 45 days, being blindfolded for 42 of those days. It is also worth noting that the Human Rights Committee has found the definition of terrorist acts in this law to be both overly broad and vague, potentially criminalising free expression, peaceful assembly and association.
The Court dismissed allegations of torture due to not having received injury reports from the forensic unit and presented the retraction of confessions as a strategy to escape punishment. This however violates the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol), and simultaneously, Bahrain’s legal obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, both of which require a full investigation of alleged torture and ill-treatment.
While the government asserts that lawful procedures have been followed, in cases of a breach of international law constituting arbitrary detention, the burden of proof is understood to rest upon the Government. Merely insisting that the correct procedures have been followed, is an insufficient response to rebut allegations. Aside from the Government’s side-stepping over the warrantless arrests, they also failed to address allegations that seven individuals (Khamis, AlMalki, AlTarifi, AlAali, Fateel, AlDolabi, Ali) were at the time of arrest, not informed of the charges. In two cases (Khamis and AlMalki), the defendants were only informed of the charges at trial, after being interrogated in relation to other charges. Not only were the nine arrests in contravention of article 9(1) of the International Covenant on Civil and Political Rights, whereby liberty cannot be deprived except on such grounds in accordance with lawful procedure, but also article 9(2), which provides that anyone who is arrested shall be informed at the time of arrest, of the reasons for the arrest and shall be promptly informed of any charges. In failing to present arrest warrants, to provide reasons and to ensure timely notification of charges, the authorities did not even establish a legal basis for the arrests. The Working Group has yet again found evidence that the failure to comply with arrest procedures is a systemic problem in Bahrain.
The Government also refused to address the delays in bringing each defendant before a judicial authority and their violation of article 9(3) of the Covenant, which imparts that anyone arrested or detained should be brought promptly before a judge. The Human Rights Committee has stated that 48 hours is an adequate amount of time, with any longer delay being an exceptional case, justifiable only under certain case circumstances. While article 27 of Bahrain’s Protection of Society from Terrorist Acts allows for a detention period of 28 days, most of the detention periods far exceeded even this time frame (Khamis – 10 months, AlMalki – over a year, AlAali – 35 days, Fateel – 6 weeks, AlDolabi – one month and 27 days, Muhana – 40 days, Ali – over a week and then 45 days), with the Government not providing any justification for the delays. In addition to this, the individuals were brought before the Office of Public Prosecution, which cannot be considered a judicial authority for the purposes of article 9(3). In the case of Mr. Ali, who was a minor at the time of arrest, the delay is especially serious. Not only does it violate the strict standard of 24 hours, which must be adhered to in brining a minor before court, but also article 37(d) of the Convention of the Rights of the Child.
The Government also failed to address the allegations of enforced disappearance, that is, deprivation of liberty against one’s will by government officials, who refused to disclose the nine individuals’ fate and whereabouts. This is in contravention to articles 9 and 14 of the Covenant and constitute an aggravated form of arbitrary detention. By being placed outside the protection of the law, there is not only a further violation of article 16 of the Covenant, but also of article 6 of the Universal Declaration of Human Rights. While it is highly likely that all nine individuals were subjected to enforced disappearance, the Working Group was unable to obtain specific information on all of the individual cases. As such, they will refer the cases of Mr. Khamis, Mr. AlTarifi, Mr. Fateel and Mr. Ali to the Working Group on Enforced or Involuntary Disappearances.
Eight of the individuals, all besides Mr. Kadhem, were initially held incommunicado without being able to challenge their detention in accordance with article 9(4) of the Covenant. The Working Group asserts that this violates their right to challenge the lawfulness of detention before a court under article 9(4) of the Covenant and article 37(d) of the Convention on the Rights of the Child. As stated in the Human Rights Convention, judicial oversight is a fundamental safeguard of personal liberty, essential to ensure that detention has a legal basis. Being held incommunicado thus violated this and further still, their right to an effective remedy under article 2(3) of the Covenant and article 8 of the Universal Declaration of Human Rights.
The Working group also adds that in agreement with the Human Rights Committee, the definition of terrorism under Bahrain’s Act No. 58 on the Protection of Society from Terrorist Acts, under which the nine individuals were prosecuted, is overly broad, further lending weight to their conclusion that the detentions were illegal. As the Government was unable to establish a legal basis for the detention of the nine individuals, their detention falls within arbitrary detention category 1.
The Working Group also considers that the evidence is credible in suggesting that the nine individuals were subjected to torture and ill-treatment resulting in forced confessions. They note that some of the alleged mistreatment (e.g. threats and religious denigration) would not leave physical marks and question the Governments timely approach to medical examinations. This is not only a serious breach of the absolute prohibition of torture as a peremptory norm of international law, but also of article 5 of the Universal Declaration of Human Rights, article 7 of the Covenant and articles 2 and 16 of the Convention Against Torture. The Working Group also stated that they received credible allegations that Mr. Ali was subjected to torture on two separate occasions, also violating article 37(a) and (c) of the Convention on the Rights of the Child. They have called for a thorough independent investigation over and beyond the enquires mentioned by the Government.
Following the non-appearance of Government comments on the alleged absence of legal counsel during interrogations when the confessions were made, the Working Group considers the claims about forced confessions credible. Any confessions in the absence of legal representation are not admissible as evidence in criminal proceedings. Furthermore any statement obtained through torture and ill-treatment render the proceedings unfair. The onus is on the Government to prove the statements were given freely, however this has not been done.
As a consequence, the Bahraini Government is contravening the individuals’ right to be presumed innocent under article 14(2) of the Covenant and in the case of Mr. Ali, under article 40(2)(b)(i) of the Convention on the Rights of the Child. Furthermore, their right not to be coerced into confessing guilt is bound under article 14(3)(g) of the Covenant and article 40(2)(b)(iv) of the Convention on the Rights of the Child. The intentional infliction of pressure to obtain a confession is also in violation of articles 2, 13, 15 and 16 of the Convention against Torture. Consequently, the Working Group will refer the case to the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In addition to this, the failure to intervene when there are allegations of torture amount to a violation of the right to a fair hearing by an independent and impartial tribunal under article 14(1) of the Covenant. As a result, the Working Group will also refer the case to the Special Rapporteur on the Independence of Judges and Lawyers.
On 16 April 2019, the individuals were convicted in a mass trial involving 169 defendants. There has been no justification for instituting trial proceedings against such a large number. Mass trials are widely regarded as incompatible with the interests of justice and do not meet the standards of fair trial. The Working Group have stated they are not convinced it is possible for all defendants in such numbers to receive proper individual assessment of culpability beyond all reasonable doubt, as such the authorities are in violation of article 14(1) of the Covenant.
At least eight of the of the individuals, all except Mr. Kadhem, had restricted access to legal representation. The Government response, that all nine of the group had lawyers present at their trial, does not address the issue that lawyers were not allowed to be present during interrogations, or address the limited time afforded to consultation before and during trial. Evidently the principle that all persons deprived of liberty have the right to legal counsel at any time during detention, including immediately after apprehension, was not respected. The individuals were not afforded their right to adequate time and facilities for the preparation of defence and communication with counsel of their choosing, as well as their right to present an effective defence, under article 14(3)(b) and 14(3)(d) of the Covenant. As a minor, Mr. Ali’s right to legal assistance in the preparation of his defence and a fair hearing in the presence of legal assistance under article 40(2)(b)(ii) and (iii) of the Convention were violated, along with his right to prompt access to legal assistance under article 37(d) of the Convention on the Rights of the Child.
The Working Group has also noted other allegations regarding the groups violations such as being tried in absentia (Mr. Kadhem), being unable to challenge or provide evidence (Mr. Khamis, Mr. AlAali and Mr. Muhana), and the use of planted evidence. These practices contributed to unfair and biased proceedings in violation of articles 14(1) and 14(3)(d) and (e) of the Covenant. As these allegations seriously call into question the impartiality of the Bahraini courts, the Working Group will include these matters in their referral to the aforementioned Special Rapporteur on the Independence of Judges and Lawyers. The legal abuses are to such an extent, that the character of the nine individuals’ detention also falls within the Working Group’s category 3.
On the basis of reports that detainees were prevented from practicing their religion and accounts of religious denigration in accompaniment to physical torture, the Working Group will also refer the case to the Special Rapporteur on Freedom of Religion or Belief.
The Working Group has made it very clear that they call for the immediate and unconditional release of all the nine individuals and request the Government ensure that they receive medical treatment. The present case is unfortunately one of several recently brought before the Working Group concerning arbitrary detention in Bahrain. The Working Group would welcome the opportunity to engage constructively with the Government through a country visit and has extended this on numerous occasions. According to the WGAD, the detention of the nine individuals is in contravention of articles 6, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2(3), 9, 14 and 16 of the International Covenant on Civil and Political Rights, also falling within categories I and III of the Working Group’s characterisations of arbitrary detainment.
The Working Group requests that the Government of Bahrain take the necessary steps to correct the situation of the nine individuals without delay. Moreover, the Government should accord them an enforceable right to compensation and other reparations and a complete expunging of their criminal records in accordance with international law. The Working Group also urges the Government of Bahrain to ensure a full and independent investigation of the circumstances surrounding their arbitrary detention and to take appropriate measures to hold perpetrators to account.
ADHRB fully supports the WGAD’s recommendations and echoes its calls for the immediate release of the nine individuals currently still incarcerated. We further welcome the commentary by the WGAD on the right to challenge the legality of detention before a court and the right to a fair trial and due process. We urge the Bahraini authorities to accept the Working Group’s pending request for a country visit, which has gone unanswered since January 2017.
 Article 27 of Law No. 58/2006 on the protection of society against terrorist acts, amended by Legislative Decree No. 68/2014.
 CCPR/C/BHR/CO/1, para. 29.
 OHCHR Professional Training Series No. 8/Rev.1 (2004).
 (A/HRC/19/57, para. 68).
 Opinion Nos. 5/2020, 73/2019, 59/2019, 31/2019, 79/2018, 51/2018, 55/2016, 41/2015.
 Human Rights Committee, General comment No. 35, para. 33; Opinion Nos. 5/2020, para. 72; 73/2019, para. 82; 14/2015, para. 29. Committee on the Rights of the Child, General comment No. 24, para. 90.
 A/HRC/16/48/Add.3, para. 21.
 Human Rights Committee, General comment No. 35, para. 17. See also Opinion Nos. 11/2020, para. 41; 6/2020, para. 43; 5/2020, para. 74.
 Opinion Nos. 45/2019, 33/2019, 32/2019, 46/2017, 45/2017.
 A/HRC/30/37, para. 3.
 Opinion Nos. 73/2019, para. 91; 59/2019, para. 70; 14/2019, para. 71; 1/2014, para. 22; E/CN.4/2003/68, para. 26(e). Committee on the Rights of the Child, General comment No. 24, para. 60.
 Human Rights Committee, General comment No. 32, para. 41.
 Opinion Nos. 32/2019, para. 44; 53/2018, para. 77(b).
 A/HRC/30/37, principle 9 and guideline 8. Committee on the Rights of the Child, General comment No. 24, para. 95(e); CRC/C/BHR/CO/4-6, para. 44(b).
 Opinion Nos. 5/2020, 73/2019, 59/2019, 31/2019, 79/2018, 51/2018, 13/2018, 55/2016, 35/2016, 41/2015, 23/2015, 37/2014, 34/2014, 27/2014, 25/2014, 22/2014, 1/2014, 12/2013, 6/2012.