Working Group on Arbitrary Detention: Bahraini imprisoned for reciting a prayer was arbitrarily deprived of liberty

The United Nations Working Group on Arbitrary Detention (WGAD) published an Opinion on its website formed on 15 July 2022 concerning AbdulNabi AbdulHasan Ebrhaim Khalil, a 50-year-old Bahraini citizen from Hamad Town who recites prayers during religious occasions as a Maddah at Ma’tam AlSammakeen. He was sentenced to a year in prison for reciting Ziyarat Ashura, a common prayer recited by Shia all over the world during Muharram. He was released after seven months in detention on alternative sentencing. The Working Group affirmed that AbdulNabi’s detention had been arbitrary due to clear violations of due process and fair trial rights as well as its connection to his right to freedom of religion, rendering his detention a discriminatory act based on his exercise of this right. As a result, the Working Group has referred his case to the Special Rapporteur on freedom of religion and belief.

Through its UN Complaint Program, Americans for Democracy & Human Rights in Bahrain (ADHRB) regularly receives information from Bahraini individuals and employs their accounts as key evidence in submitted complaints to the United Nations Special Procedures Offices. As such, the documentation collected by ADHRB was the source of information upon which the WGAD based its Opinion on AbdulNabi’s case.

In its Opinion No. 77/2021, adopted on 19 November 2021, the Working Group identified various categories of its method of work under which AbdulNabi’s deprivation of liberty fell and in which  international laws and standards were violated. As such, the Working Group has requested the Government of Bahrain to take the necessary steps to remedy the situation of AbdulNabi without delay to bring it into conformity with the relevant international norms. The Working Group set out the appropriate actions in this case as follows:

“Release unconditionally Mr. AbdulNabi AbdulHasan Ebrahim Khalil unconditionally and accord him an enforceable right to compensation and other reparations, in accordance with international law… [and] ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. AbdulNabi AbdulHasan Ebrahim Khalil and to take appropriate measures against those responsible for the violation of his rights.”

ADHRB welcomes this Opinion by the WGAD and urges the Bahraini authorities to provide AbdulNabi with adequate reparations and compensation for his arbitrary detention and the violations he suffered, in addition to holding the perpetrators of those violations accountable.

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 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 opinions, gender, sexual orientation, disability, or any other status (Category V).

In its Opinion, the Working Group found that AbdulNabi, who was released approximately a year ago to serve a 5-month alternative sentence under electronic monitoring, had suffered a range of human rights violations throughout his 7-month long detention. First, AbdulNabi was unlawfully arrested without a warrant; second, he was not brought promptly before a judge nor granted access to his lawyer; third, he was tried and convicted in relation to the exercise of his right to freedom of religion by reciting a prayer. Despite AbdulNabi’s release, the Working Group found the allegations in his case extremely serious, warranting the delivery of an Opinion.

The Working Group determined that AbdulNabi’s warrantless arrest on 3 September 2020 violates articles 3 and 9 of the Universal Declaration of Human Rights, article 9(1) of the Covenant as well as principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Furthermore, AbdulNabi was detained for 67 days even though norms of international law dictate that pre-trial detention should be ordered for the shortest time possible, and charges were not brought against him until 10 November 2020. He was not brought before a judge within the 48 hour window stipulated in article 9(3) of the ICCPR. AbdulNabi was held in incommunicado detention, whereby he was denied contact with his family and lawyer during pre-trial detention and authorities failed to disclose his location.

Since the Bahraini government did not to provide an adequate response to the raised allegations, instead relying on generic statements which did not address AbdulNabi’s warrantless arrest and prolonged detention, the Working Group found that AbdulNabi was denied his right to challenge the lawfulness of his detention before a court, a violation of article 6 of the Universal Declaration of Human Rights and article 9(4) of the ICCPR. Moreover, the Working Group concluded that the Government failed to establish a legal basis for AbdulNabi’s detention, rendering his detention arbitrary under Category I.

The Working Group considered that the events leading up to AbdulNabi’s detention had been directly linked to the exercise of his right to religious freedom, which is guaranteed in article 18 of the universal Declaration of Human Rights and article 18 of the ICCPR. While the government cited national legislation, namely Articles 92 (1,2), 309, 310 (2)) of the Penal Code which criminalizes insulting symbols subject to glorification of the people of religion, an act it convicted AbdulNabi of committing during the sermon, the Working Group contested that the Human Rights Committee, in its General Comment no. 34, had expressed concern regarding laws pertaining to disrespect of authority, flags, symbols, and others, indicating that laws should not establish more severe penalties solely on the basis of the identity of the person that may have been impugned. The Working Group thus found that AbdulNabi’s detention falls under Category II deprivation of liberty.

The Working Group emphasized that no trial should have taken place against AbdulNabi. Despite this, AbdulNabi was tried and convicted, and his due process rights were violated. He was denied access to legal counsel, a right enshrined in article 10 of the Universal Declaration of Human Rights and articles 14(1) and 3(b) and (d) of the ICCPR. In its response, the government did not deny the fact that AbdulNabi was denied communication with his lawyer until after his trial had begun. This, along with the government preventing AbdulNabi from communicating with the outside world in general, renders the violations of fair trial rights suffered of such gravity that his detention constitutes a Category III deprivation of liberty.

Finally, the Working Group found that AbdulNabi was arbitrarily detained under Category V. His interrogation, coercion into signing a pledge, and subsequent deprivation of liberty are discriminatory based on his peaceful exercise of his right to freedom of religion, a violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2(1) and 26 of the ICCPR. The government did not provide any information refuting this allegation.

In its concluding remarks, the Working Group noted that AbdulNabi was the only prisoner of conscience among the 126 prisoners released under alternative sentencing on 3 April 2021,  and pointing out that he was prevented from reciting Ziyarat Ashura or participating in religious assemblies and forced to inform authorities of his whereabouts until October 2021. The Working Group also highlighted the continued suspension of AbdulNabi’s salary, which has taken a toll on his family’s financial situation. The Working Group called on the government to take the necessary measures to reverse or redress these prejudices which were suffered by AbdulNabi. 

ADHRB echoes the requests made by the Working Group for a full and independent investigation of the circumstances surrounding AbdulNabi’s arbitrary deprivation of liberty so that appropriate measures can be taken against those responsible for the violation of his rights, in addition to AbdulNabi receiving proper reparations for his arbitrary detention, alternative sentencing, and the suspension of his salary.