The United Nations Working Group on Arbitrary Detention (WGAD) adopted an Opinion on 26 November 2020, concerning Ali Mahdi Abdulhusain Mohamad Alaiwi, Hasan Asad Jasim Jasim Nesaif, Habib Hasan Habib Yusuf, Ali Ahmed Ali Ahmed Fakhrawi, Mohamed Ahmed Ali Ahmed Fakhrawi, and Nooh Abdulla Hasan Ahmed Hasan Al Amroom.
In the opinion, the WGAD determined that the six cases demonstrate a pattern of warrantless arrest and the use of torture by officials to extract confessions, in violation of international law. The Working Group requests that the Government of Bahrain take the steps necessary to remedy the situation 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. This includes the immediate and unconditional release of the prisoners who remain in detention. The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be to release Messrs. Alaiwi, Nesaif, Yusuf, Ali Fakhrawi, Mohamed Fakhrawi and Amroom immediately and accord them an enforceable right to compensation and other reparations, in accordance with international law. In the current context of the COVID-19 pandemic and the threat that it poses in places of detention, the Working Group calls upon the Government to take urgent action to ensure their immediate release.
As a matter of practice, Americans for Democracy & Human Rights in Bahrain (ADHRB) regularly receives information from Bahraini individuals and employs their accounts as key evidence in submitted complaints by the United Nations (UN). ADHRB welcomes this opinion by the UN, and urges the Bahraini authorities to follow the recommendations without delay.
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 detention. 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 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 six individuals: Ali Mahdi Abdulhusain Mohamad Alaiwi, Hasan Asad Jasim Jasim Nesaif, Habib Hasan Habib Yusuf, Ali Ahmed Ali Ahmed Fakhrawi, Mohamed Ahmed Ali Ahmed Fakhrawi, and Nooh Abdulla Hasan Ahmed Hasan Al Amroom, currently incarcerated at Jau Prison, have been unlawfully convicted and have suffered a slew of illegal human rights violations.
The dates of their arrest range from May 2011 to September 2015. The alleged violations involve arrests without a warrant, enforced disappearances, and torture. The most common methods of torture reported include beatings all over the body, deprivation of sleep, detention in cold rooms, and threats against family members. Two of the defendants were minors at the time of their arrest (Ali Mahdi Abdulhusain Mohamad Alaiwi and Hasan Asad Jasim Jasim Nesaif). Due to the torture that they were inflicted with, at least four of the defendants signed confessions to the charges attributed to them.
The defendants were all denied access to their lawyers, or allowed only limited access at certain periods. The WGAD has found a consistent pattern of behavior by Bahraini authorities in not providing arrest warrants or reasons for arrests. A prompt notification of the charges is often not provided, suggesting that the failure to comply with arrest procedures is a systemic problem. Indeed, the WGAD reported that all six individuals were arrested without a warrant; the government did not respond to this allegation.
Moreover, none of the individuals were brought promptly before a judicial authority to challenge the legality of their detention. Following Mr. Mohamed Fakhrawi’s arrest, he was subjected to enforced disappearance for three months. The government stated that the allegations that enforced disappearance had been employed by the authorities were unsubstantiated. However, the government failed to detail the specific location of the individual following their arrest, or any information to suggest that their families and lawyers knew their fate or whereabouts. These cases of enforced disappearances violate Articles 9 and 14 of the ICCPR and constitute a particularly aggravated form of arbitrary detention. Mr. Mohamed Fakhrawi and Mr. Amroom were also placed outside the protection of the law, in violation of Article 6 of the Universal Declaration of Human Rights and Article 16 of the Covenant. Additionally, while Mr. Yusuf was able to call and inform his relative on the day of his arrest that he was being held at the CID, authorities subsequently held him incommunicado and interrogated him for 25 days without a lawyer present.
All six individuals were subjected to torture and ill-treatment, which produced coerced confessions in at least four of the cases. The Working Group expresses its grave concern at the allegations of torture and/or ill-treatment during Messrs. Alaiwi, Nesaif, Yusuf, Ali Fakhrawi, Mohamed Fakhrawi, and Amroom’s arrest and/or detention. The Working Group notes that, in some instances, the Government stated that it investigated these allegations, but that the cases were filed or archived.
Four cases are submitted as a Category I deprivation of liberty, with no legal justification for the detention, and all six cases are submitted as Category III deprivations of liberty, showing a regular practice of arrests and searches without the required authorization to do so, or other violations to fair trial rights, including lack of access to legal counsel, hearings conducted in absentia, and confessions obtained through torture used in judicial proceedings. In the case of the two minors, Ali Mahdi Abdulhusain Mohamad Alaiwi and Hasan Asad Jasim Jasim Nesaif, many of their rights under the Convention on the Rights of the Child were violated by the government of Bahrain. These rights include: the right to prompt access to legal assistance, assistance in the preparation of their defense, and a fair hearing in the presence of a lawyer.
All of the individuals had restricted access to legal representation. The source alleges that Messrs. Alaiwi, Nesaif, Yusuf, Ali Fakhrawi, Mohamed Fakhrawi, and Amroom had limited or no access to legal counsel of their choice after their arrests and/or during the proceedings. The Government stated that legal assistance was provided to all the individuals, according to the Criminal Code. However, the Working Group notes that the Government has not further substantiated its claim. In the Working Group’s view, the Government failed to respect Messrs. Alaiwi, Nesaif, Yusuf, Ali Fakhrawi, Mohamed Fakhrawi, and Amroom’s right to legal assistance, which is inherent in the right to liberty and security of person as well as the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, in accordance with articles 3, 9, 10 and 11 (1) of the Universal Declaration of Human Rights.
The Working Group notes that the source stated that the six individuals were not brought promptly before a judge. The Government explained, in its response, that all the individuals were questioned by the Office of the Public Prosecution, who then ordered their custody. The Working Group recalls that, while international standards set out in the Working Group’s jurisprudence prescribe that the arrested person is to be brought before a judge within 48 hours, a stricter standard of 24 hours is applicable for Messrs. Alaiwi and Amroom under the Convention on the Rights of the Child. In addition, the individuals were brought before the Office of Public Prosecution, which cannot be considered a judicial authority for the purposes of Article 9 (3) of the Covenant.
The Government response, stating that all six 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 also not afforded their right to adequate time and facilities for the preparation of defense and communication with counsel of their choosing, as well as their right to present an effective defense, under article 14(3)(b) and 14(3)(d) of the Covenant. Ali Alaiwi, Mohamed Fakhrawi, Hasan Nesaif, Habib Yusuf, Ali Fakhrawi, and Nooh Al Amroom had no communication with the lawyer and were not even permitted to meet with their lawyers prior to the start of their trial. As a minor, Mr. Hasan Nesaif’s rights to legal assistance in the preparation of his defense and a fair hearing in the presence of legal assistance under Article 40(2)(b)(ii) and (iii) of the Convention were also violated, along with his right to prompt access to legal assistance under Article 37(d) of the Convention on the Rights of the Child.
According to the WGAD, the deprivation of liberty of Ali Mahdi Abdulhusain Mohamad Alaiwi, Hasan Asad Jasim Jasim Nesaif, and Nooh Abdulla Hasan Ahmed Hasan Al Amroom, being in contravention of Articles 3, 8, 9, 10 of the Universal Declaration of Human Rights, Articles 2 (3), 9 and 14 of the International Covenant on Civil and Political Rights and Articles 37, and 40 of the Convention on the Rights of the Child, is arbitrary and falls within categories I and III. Under certain circumstances, widespread or systematic imprisonment may constitute crimes against humanity.
In light of these findings, the Working Group requests that the Government of Bahrain take the steps necessary to remedy the situation of Messrs. Alaiwi, Nesaif, Yusuf, Ali Fakhrawi, Mohamed Fakhrawi, and Amroom 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.
To this end, the WGAD recommends that Bahrain release the six individuals who remain in detention and accord all of them an enforceable right to compensation and other reparations, in accordance with international law. In the current context of the COVID-19 pandemic and the threat that it poses in places of detention, the Working Group calls upon the Government to take urgent action to ensure their immediate release.
The Working Group urges the Government of Bahrain to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of the six individuals with the view to hold the perpetrators to account. The Working Group would also welcome the opportunity to engage constructively with the Government of Bahrain through a country visit.
ADHRB fully supports the WGAD’s recommendations and echoes its calls for the immediate release of the six individuals still currently detained. We further welcome the commentary by the WGAD on the right to challenge the legality of detention before a court, the right to a fair trial, and the right to freedom of opinion and expression.