On April 2, 2021, Assistant Attorney General Wael Buallay claimed that 126 prisoners would be released under the alternative penal code, knowing that this decision included only one prisoner of conscience. This prisoner of conscience was arrested on charges of reciting Ziyarat Ashuraon September 3, 2020, and had only a mere two months remaining until the end of his sentence. The rest of the prisoners who were included in the decision are all criminal prisoners.
In making this decision, the authorities attempted to divert attention away from their inherent failure to manage the pandemic, and the health crisis that befell political prisoners as a result. The rapid spread of the virus in Bahraini prisons and the registration of large numbers of infections stemmed directly from the failure of authorities to provide the necessary health care and the minimal means of prevention offered to prisoners to protect themselves from the virus. Officially, the Ministry of Interior only confessed to one case on February 2, 2021, and to three cases on March 23, 2021, in order to prevent the Ministry of Health from publishing the names and numbers of daily injuries. Nevertheless, official statements continue to be delivered which deny the reality of the situation in the prisons and conceal the failures to take appropriate health measures during the pandemic.
On April 8, another group of 73 prisoners were scheduled to be released under alternative sentences, bringing the total number of prisoners released since the implementation of the alternative penal code to 3,297. From this second group, 54 political prisoners have now been released. Among them is the oldest political prisoners, 75-year-old Mohammed Jawad Pervez, whose case has been documented by Americans for Democracy & Human Rights in Bahrain (ADHRB), as well as the cases of Sayed Ali Fadl, Jalal Saeed, Hadi Ibrahim Al-Arab, Mohamed Sharaf, Ali AlGhanemi, Mohamed Al-Moallem, Yusuf Mohamed Fathi, Ahmed Hasan Al-Madhoun.
The adoption of the alternative penal code in 2017 stemmed from a joint cooperation between Bahrain and the United Kingdom, to address alternative punishments and their imposition in criminal cases. It is evident that the alternative penal code refers only to criminal prisoners, and this is what is applied in various countries around the world. This is also the practice in accordance with the United Nations Standard Minimum Rules for Non-Precautionary Measures for Prisoners. However, Bahrain’s use of the alternative penal code violates international norms and minimum rules, by applying the scheme to political prisoners and prisoners of conscience who have not engaged in criminal activity. These prisoners have been arrested simply for expressing their opinion or engaging in peaceful demonstrations and are instead subjected to alternative measures which degrade their human dignity. Abd al-Hadi Mushaima was arrested for participating in a peaceful march but was released on March 11, 2021 as part of an alternative sentencing ruling. Despite being elderly, suffering from chronic diseases, and having not committed a criminal offence, he was forced to work at the post office.
Every year, with the beginning of Ramadan, a group of prisoners is released under a royal pardon. However, usually most of these prisoners are criminal prisoners. This year, a royal decree pardoned 91 prisoners, most of whom were also foreigners. For these foreigners, they are transferred to accommodation in detention centers, where they enjoy more privileges and are permitted to leave the country once they obtain a ticket.
However, the amnesty decisions under alternative sentencing have not deterred the people from continuing their demands to unconditionally release all political prisoners and prisoners of conscience. Activists continue to hold demonstrations and organize protests condemning this practice, drawing attention to the authorities’ harassment of prisoners released under alternative sentencing. Political prisoners continue to be subjected to house arrest, imposition of electronic censorship and prevention from participation on social media under alternative sentencing practices. Therefore, it is necessary to highlight the use of the alternative penal code in Bahrain compared to the rules of the United Nations and international norms, in order to support national and international demands for the unconditional release of all political prisoners and prisoners of conscience.
On 9 September 2021, King Hamad bin Isa Al Khalifa issued a Decree amending Article 13 of the Alternative Sentencing Law of 2017, which stipulated:
– The relevant entity in the Ministry of Interior may request the judgment execution judge to replace the original sentence of a convict, before the beginning of its execution, with one or more alternative sentence as stipulated in Article 2 of this law, on the condition that this does not pose a risk to national security and that the convict fulfilled the financial obligations he is sentenced to by the criminal court as long as it was not impossible for him to fulfill them.
– The relevant entity in the Ministry of Interior , after coordinating with the Correction and Rehabilitation Center, may ask the judgment execution judge to replace the original sentence with one or more alternative sentence as stipulated in Article 2 of the law, for a duration equating to the rest of the judgment or the total of the judgments he is sentenced to, and that is if the following conditions are met by the convict: has good conduct and standing, his release does not pose a danger to national security, has fulfilled the financial obligations he was sentenced to by the criminal court as long as it was not impossible for him to fulfill them.
Definition of Alternative Penalties
On September 20, 2013, the United Nations Economic and Social Council issued Resolution 35. Article 13 of this Resolution recommended that member states make efforts to reduce prison overcrowding and reduce the use of pretrial detention, as well as to encourage increased recourse to judicial mechanisms and to promote alternatives to sanctions depriving of liberty.
The United Nations has recognized 12 types of alternative sanctions in the United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules):
- Oral punishments such as warning and reprimand
- Penalties that affect the legal status of an individual
- Economic penalties and monetary penalties such as daily fines
- An order to confiscate funds or expropriate property
- The order to return the right to the victim
- Judgment suspended or postponed
- Probation and judicial supervision
- The order to perform community services
- Referral to appearance centers
- House arrest
- Any other form of treatment other than placement in a custodial institution
The Tokyo Rules define the scope of custodial measures as follows:
- Applicability of the relevant provisions of these rules to all persons subject to prosecution and trial at all stages of the administration of criminal justice affairs. These persons are referred to as “offenders” regardless of whether they are suspects, accused or have been sentenced.
- These rules must be applied without discrimination based on gender, color, religion, belief or political opinion.
- The development of new non-custodial measures should be encouraged, and these measures should be regularly monitored and evaluated on their use.
- The use of non-custodial measures should be part of the de-punishment and de-trial trend.
- The dignity of the offender against whom non-custodial measures are taken must be preserved in all circumstances.
- When applying non-custodial measures, the right of the offender and the right of his family to protect his private life shall be respected.
The Tokyo Rules also emphasized “the need to find effective alternatives to the imprisonment of criminals and to enable authorities to tailor criminal penalties to the needs of the individual offender in a manner that is appropriate to the crime committed, and the advantages of sentencing according to the circumstances of the case in this way are clear. Given that it allows the criminal to remain at liberty, and enables him to continue working, studying and living.”
For more than half a century, the United Nations has held conferences aimed at strengthening international cooperation to prevent the expansion of crime and to find appropriate policies for dealing with prisoners, including the policy of alternative punishments. The most prominent of these conferences included those undertaken in Geneva, Caracas, Milan, Cairo, Vienna, and Bangkok). These conferences agreed on recommendations aimed at:
- Searching for reasonable penalties that do not require imprisonment as a means, in order to reduce the number of prisoners.
- Studying the issue of penalties that do not require imprisonment and measures aimed at social integration.
- Urging the strengthening of non-custodial measures and reducing the prison population.
- Promote safe and effective alternatives to imprisonment, as appropriate.
On July 20, 2017, the King of Bahrain issued Law No. 18 regarding alternative penalties and measures, allocating the types of alternative punishments to include:
- Work in community service
- House arrest in a specific place
- Prohibition of going to a specific place or places
- Undertaking not to be exposed to or contact certain persons or entities
- Subject to electronic monitoring
- Attending rehabilitation and training programs
- Repairing the damage caused by the crime
According to Law No. 18, the Correction and Rehabilitation Institution may request that the execution judge substitute one or more alternative punishments for the original sentence imposed, for a period equal to the remainder of the sentence or the sum of the penalties imposed, if it is available in the convicted person. It has the following requirements:
- That he has served half the term of the sentence or penalties imposed;
- That he be of good conduct and behavior;
- That his release not pose a threat to public security; and
- That he has fulfilled the financial obligations imposed on him by the criminal court, unless it is impossible for him to fulfill them.
After analyzing Bahrain’s alternative penal code and its adherence to United Nations minimum standards, a number of notions become clear.
- First: If one of the reasons for utilizing alternative punishments is to reduce prison overcrowding, Bahrain’s prison system portrays an opposite reality. Prisoners of Jau Prison continue to complain of overcrowding inside the cells, with the prison administration known to deliberately place large numbers of prisoners in cells which are too small to accommodate them. Further, in Buildings 12, 13, and 14 of Jau Prison, there are more than 700 prisoners, despite calls to reduce this number as a measure of combating the spread of COVID-19 in the prison.
- Second: The alternative penal code is associated with people who have committed criminal offences. This alternative sentencing program should not apply to political prisoners and prisoners of conscience who have been arrested solely for expressing their opinion. Amongst many others, this includes prominent human rights defender Nabeel Rajab, who was released by the authorities on June 9, 2020, under alternative sanctions. Nabeel spent four years in prison on charges of criticizing the Bahraini government on social media and during television interviews.
- Third: The alternative penal code in Bahrain does not allow the prisoner’s defense lawyer to suggest the alternative punishment that the prisoner deserves according to his accusation. Therefore, it is limited only to the opinion of the General Department for Reform and Rehabilitation, as well as the judge, in violation of fair trial standards.
- Fourth: The conditions of the alternative penal code do not apply to prisoners sentenced to life or prisoners who have not served half of their long-term sentences. This excludes many political prisoners who have been sentenced to life in prison, and discriminates against the elderly who may not live to serve out half of their long-term sentences. This is further complicated by the threat that COVID-19 poses to their lives, which reiterates the need for them to be immediately unconditionally released.
Calls for the Unconditional Release of Political Prisoners
Freedom of opinion and expression is a right enshrined in international human rights instruments. Therefore, the application of the alternative penal code against political prisoners and prisoners of conscience and its association with criminality direct violates the sanctity of this right. Despite repeated international calls to release political prisoners immediately and unconditionally, whether this be through the European Union, the Office of the United Nations High Commissioner, or Special Procedures at the United Nations, the Bahraini authorities have refused to concede. Bahraini authorities continue to exercise restrictions on political prisoners, either by keeping them imprisoned, or by releasing them with harsh restrictions on their freedom. Therefore, ADHRB calls for the immediate and unconditional release of all political prisoners and prisoners of conscience, and for prison authorities to take responsibility for their negligent disregard for adequate health measures to be taken inside Bahraini prisons during the course of the pandemic.