“No Legal Basis” for Fateel’s Detention, Finds UN Body

The United Nations Working Group on Arbitrary Detention (WGAD) published an Opinion on 15 March 2023 concerning the case of Naji Fateel. Fateel is a Bahraini human rights defender and activist who was arrested in 2013, tortured, and subjected to countless human rights violations including unfair trial and ill-treatment. The Working Group found that Fateel, who is currently serving his sentence at Jau prison, is arbitrarily detained under four different Working Group categories in violation of international human rights law, and called on the Bahraini government to immediately and unconditionally release him and undertake an impartial investigation to identify the perpetrators of the violations and hold them accountable.

Americans for Democracy & Human Rights in Bahrain (ADHRB) and the Bahrain Institute for Rights and Democracy (BIRD) were the source of the complaint to the WGAD. ADHRB and BIRD welcome the Opinion of the Working Group, and echo its calls for the immediate and unconditional release. ADHRB wishes to voice its full support to the demands of the Working Group and its concern over the situation of human rights in Bahrain, including that of Fateel. In light of the grave violations committed, the Working Group pointed out the systematic human rights abuses committed by Bahrain and believes that the only way to remedy Fateel’s situation is by immediately releasing him and providing him with medical care. They also called for an impartial investigation to identify the perpetrators of the violations and hold them accountable. The severity of the violations has also prompted the Working Group to refer Fateel’s case to four UN Special Procedure offices. Ultimately, the Working Group called on Bahrain to allow visits by Special Procedure offices to investigate these abuses. Bahrain has refused to admit experts from the Special Procedures to conduct investigations for years.

The WGAD is one of the Special Procedures 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 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, Opinion No. 65/2022 adopted during its 95th session, the WGAD found that Fateel’s detention was arbitrary under Categories I (lacking a legal basis justifying the deprivation of liberty), II (in violation of the right to freedom of expression), III (his detention is arbitrary due to the unfair nature of her trial), and V (discrimination on the basis of his political opinion).

On 2 May 2013, Fateel’s home was raided by masked security officers, some wearing civilian clothing, who arrested Fateel and confiscated some of his family’s belongings and electronics. They did not present a search or arrest warrant, nor did they inform them of the reason for arrest. The masked officers assaulted Fateel, beating him severely and stomping on his head. He was taken to the CID and held incommunicado for two days. During that time, Fateel was subjected to severe physical and psychological torture including kicking, slapping, and beating all over his body, especially his genitalia. He was also deprived of food and forced to stand for long hours. While being interrogated, Fateel was denied access to his lawyer. He was taken to the Public Prosecution Office on 6 May 2013, where he insisted on the presence of an attorney. However, the prosecutor refused and sent him back to the CID, where he was tortured again.  As a result of the severe torture, he lost conscious twice during interrogations, and was transferred to Al-Qalaa Hospital. Later, he was taken again to the public prosecutor’s office, where he was forced to sign confessions for the two cases in which he was accused. The first was related to illegal assembly, while the second case was related to the formation of a group called the “February 14 coalition,” for which he was charged under the vague terrorism law. He was sentenced to six months in the first case and 15 years in the second. Both sentences were upheld by the courts of Appeal and Cassation. Fateel was also charged in a third case following the riots in Jau prison on 11 March 2015, because of the restrictions imposed by the authorities. Fateel was sentenced to 15 years for this case which was reduced to 10 years after appeal.

Between 2013 and 2016, Fateel was found guilty in three separate cases and sentenced to a total of 25 years and six months imprisonment. Throughout this period and until recently, Fateel was repeatedly denied medical care and went on multiple hunger strikes to protest the ill-treatment to which he was subjected at Jau Prison.

The Working Group recalled that international law includes the right to be presented with an arrest warrant, and that since a prima facie case for breach of international law constituting arbitrary detention has been established, the burden of proof falls upon the government to refute these allegations. While the government states that an arrest warrant was issued, it does not mention that the warrant was presented. Moreover, he was informed of the reason for the arrest. Thus, the government failed to establish a legal basis for the arrest of Fateel. The Working Group noted the similarity in recent cases concerning Bahrain, where the government repeatedly failed to provide an arrest warrant at the time of the arrest and to state the reason for the arrest.

 The Working Group also points out that he was not brought promptly before a judge. The expected time to bring a detainee before a judge is 48 hours, and any delay should be justified. However, Fateel was brought to the public prosecutor’s office, a prosecutorial body and not a judicial authority, four days after his arrest. Furthermore, seeing as Fateel was held incommunicado for two days following his arrest while his family was unaware of his whereabouts, and seeing as the government did not respond to these allegations, the Working Group found Fateel to have been subjected to enforced disappearance in breach of international law. He was also held incommunicado for 34 days, between 10 March and 12 April 2015, following the riots in prison.

Lastly, Fateel was prosecuted under the Bahrain Terrorism Law No. 58 of 2006 with respect to protecting the society from terrorist acts, which the Working Group has found to contain provisions that are overly vague and include an overly broad definition of terrorism. The Working Group also mentions that Bahrain has often used these ambiguous legal texts.

After consideration of the above issues, the Working Group came to the conclusion that the government violated articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights, the Body of Principles, and the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules). Thus, Fateel’s detention was without legal basis, rendering him arbitrarily detained under category I.

The Working Group also found that, since Fateel was detained and sentenced for the peaceful exercise of his rights to freedom of opinion and expression, mainly for his role in the February 14 coalition and protests, and was convicted under Law No. 58 for the peaceful exercise of rights inconsistent with the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, his detention was arbitrary under category II. The Working Group also referred his case to the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the situation of human rights defenders.

The Working Group also indicates that the information submitted by ADHRB and BIRD included various violations to his fair trial rights. With respect to the right of access to legal counsel, the Working Group recalled that all persons deprived of their liberty have the right to legal assistance by counsel of their choice at any time during their detention, including immediately after apprehension. Fateel was prevented from meeting his lawyer during different stages of his interrogation, imprisonment, and trial, subsequently impairing his ability to prepare a defense. Moreover, he was also threatened with torture at the public prosecutor’s office after asking for the presence of his lawyer. Even when his lawyer was present during trial, he was silenced by the judge and was unable to present proper defense. Therefore, the Working Group determined that the government did not uphold Fateel’s right to legal counsel in accordance with Article 14 of the ICCPR.

The Working Group also points out that all three trials were mass trials which they described as “incompatible with the interests of justice”. Furthermore, the confession used against Fateel in case two was coerced by torture, for which the government does not present evidence to dismiss ADHRB’s claims. He was subjected to severe physical and psychological torture in order to coerce a confession, which violates the Convention against Torture. Despite pictures of bruises on Fateel’s back being posted on the internet and being presented during trials, there has been no action by the judge or the Special Investigation Unit (SIU). In fact, the government responds to the allegations of torture was by stating that the SIU had conducted investigations, and does not refute these claims. In the opinion, the Working Group also expressed its concern regarding the impartiality and effectiveness of the SIU and ombudsman, and questioned the nature of the charges that the officers who the government claimed were prosecuted for torture.

Additionally, Fateel was subjected to a policy of isolation for six months, which the Working Group considered solitary confinement potentially amounting to torture as described in Article 1 of the Convention against Torture, as well as in the Mandela rules for treatment of prisoners. Additionally, Fateel’s denial of medical care may also constitute a form of torture. In light of these severe accusations of torture and mistreatment, the Working Group referred the current case to the Special Rapporteur on torture. The Working Group considers that the complaint by ADHRB presented a credible prima facie case that Fateel was subjected to torture and violated its international legal obligations. In light of all these facts, the Working Group concluded that Fateel’s trial failed “to meet internationally accepted legal standards of a fair trial and due process guarantees”, rendering his detention arbitrary under category III.

Furthermore, seeing as Fateel was arrested for expressing his political opinion through his participation in the pro-democracy protests, hence deprived of his liberty on discriminatory grounds, the Working Group found his detention to be in violation of articles 2 (1) and 26 of the Covenant and articles 2 and 7 of the Universal Declaration of Human Rights. Thus, the Working Group considered his detention arbitrary under category V.

In light of these findings, the Working Group expressed its concern over the well-being of Fateel, seeing as his health has deteriorated throughout his nine-year detention, and also considering the torture to which he was subjected. Ultimately, it urged the government of Bahrain to immediately and unconditionally release Fateel and ensure that he be provided with the necessary medical care. Furthermore, the Working Group referred the case to the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health due to the medical negligence to which Fateel has been subjected. The Working Group also observed that numerous cases concerning Bahrain follow a similar pattern of warrantless arrests, pretrial detention with limited access to judicial review, denial of access to lawyers, forced confession, torture and ill-treatment and denial of medical care.

To this end, the Working Group requested that the Bahraini government take the necessary steps to remedy the situation of Fateel, and considered his release to be the appropriate remedy, as well as according him the right to compensation in accordance with international law. Furthermore, the Working Group called on the government to investigate the circumstances of Fateel’s arbitrary deprivation of liberty, including torture allegations, and to take appropriate measures to hold accountable those responsible for the violation of his rights.

The Working Group stated that it would welcome the opportunity to conduct a country visit to Bahrain, and considered that it is now an appropriate time to conduct a visit, having last visited the country in October 2001, while requesting that the government provide it with information on action taken in follow-up to the recommendations made in the present opinion.

ADHRB fully supports the WGAD’s recommendations and echoes its calls to release Fateel immediately and provide him with appropriate compensation in accordance with international law. ADHRB reiterates the Working Group’s demands for a thorough and impartial investigation into the circumstances surrounding the arbitrary deprivation of Fateel’s liberty in order for appropriate measures to be taken to hold perpetrators to account.