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IRAQ: ARBITRARY DETENTION OF STUDENT AL-TAEI BASED ON VAGUE ANTI-TERRORISM LAW

The International League Against Arbitrary Detention urges the Government of Iraq to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 5/2022 concerning Abdullah Ahmed Faleh Ahmed al-Taei (Iraq) starting with his immediate release and according him an enforceable right to compensation and other reparations.


Read the full WGAD Opinion concerning Abdullah Ahmed Faleh Ahmed al-Taei (Iraq): Opinion No. 5/2022


ARRESTED AND DETAINED INCOMMUNICADO FOR MORE THAN A YEAR WITHOUT ANY LEGAL BASIS


M. Abdullah Ahmed Faleh Ahmed al-Taei, born in 1997 is an Iraqi citizen. At the time of his arrest, he was a middle school student. He usually resides in east Mosul, Niniveh. M. Abdullah Ahmed Faleh Ahmed al-Taei was not presented with an arrest warrant upon his arrest, he did not have immediate access to a legal counsel, nor was he permitted to promptly inform his family of the arrest and detention, in violation of article 9 (1) and (2) of the International Covenant on Civil and Political Rights.


M. Abdullah Ahmed Faleh Ahmed al-Taei was presented before the investigative judge for the first time only 14 days after his arrest. In these circumstances, the Working Group considered that, in violation of article 9 (3) of the International Covenant on Civil and Political Rights, Mr. Al-Taei was not brought promptly before a judge during his pretrial detention, that is, within 48 hours of his arrest barring absolutely exceptional circumstances. Thus, he was not afforded the right to take proceedings before a court so that it could decide without delay on the lawfulness of his detention in accordance with articles 8 and 9 of the Universal Declaration of Human Rights; articles 2 (3) and 9 (4) of the International Covenant on Civil and Political Rights.


Moreover, M. Abdullah Ahmed Faleh Ahmed al-Taei was subjected to enforced disappearance and detained incommunicado for almost a year. In relation to his enforced disappearance, his family learned about his whereabouts only through acquaintances who had been visiting their own son at Al-Nasiriyah prison where Mr. Al-Taei had been transferred to serve his sentence. The Working Group noted that enforced disappearance constitutes a particularly aggravated form of arbitrary detention, in violation of article 9 (1) of the International Covenant on Civil and Political Rights and article 6 of the Universal Declaration of Human Rights. With regard to Mr. Al-Taei’s incommunicado detention, as the Working Group and other human rights mechanisms have stated, holding persons incommunicado violates their right to challenge the lawfulness of their detention before a court under article 9 (3) and (4) of the International Covenant on Civil and Political Rights. Incommunicado detention, especially during the early stage of the investigation, is an environment that is conducive to torture, cruel and inhuman treatment, as it may be used to coerce the individual to confess to the commission of the alleged crimes and admit guilt.


For these reasons, the Working Group found that the Government failed to establish a legal basis for Mr. Al-Taei’s arrest and detention. His detention is thus arbitrary under category I.


SENTENCED TO DEATH ON THE BASIS OF A VAGUE AND OVERLY BROAD ANTI-TERRORISM LAW AFTER BEING TORTURED TO CONFESS GUILT


The Working Group noted that Mr. Al-Taei was sentenced to death on the basis of article 2 (1), (3) and (5) of the Anti-Terrorism Law. The Working Group recalled that according to the former Special Rapporteur on extrajudicial, summary or arbitrary executions, the Anti-Terrorism Law itself is both vague and overly broad and its definition of terrorism is not in line with the International Convention for the Suppression of the Financing of Terrorism that Iraq ratified in 2012. The Working Group noted these arguments and referred the case to the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, for appropriate action.


The Working noted with grave concerns that in the first two weeks of his detention, Mr. Abdullah Ahmed Faleh Ahmed al-Taei was allegedly subjected to severe forms of torture and ill-treatment. He was severely beaten, including in his face, and hung from the ceiling of the room for several hours. The perpetrators further threatened to bring his relatives to the detention facility to subject them to ill-treatment. Mr. Al-Taei was also deprived of sufficient food and water.


Moreover, the Working Group also noted that Mr. Abdullah Ahmed Faleh Ahmed al-Taei was reportedly forced to sign six blank sheets of paper, and after he had done so, the perpetrators allegedly noted statements on those pages, which were later used against him in the judicial proceedings. As a result, the Working Group found that Mr. Al-Taei’s right not to be compelled to confess guilt under article 14 (3) (g) of the International Covenant on Civil and Political Rights and article 11 (1) of the Universal Declaration of Human Rights was violated, and refered the case Mr. Al-Taei to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, for appropriate action.


TRIED IN VIOLATION OF HIS RIGHT TO PRESENT A DEFENSE AND TO A FAIR HEARING


Mr. Abdullah Ahmed Faleh Ahmed al-Taei was not given prompt access to a legal counsel of his choice, nor was he able to have confidential communications with the court-appointed lawyer before and during his trial to prepare his defence. In the Working Group’s view, the Government failed to respect Mr. Al-Taei’s right to legal assistance at all times, which is inherent in the right to liberty and security of person, 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 and article 14 (1) of the International Covenant on Civil and Political Rights.


Moreover, as Mr. Al-Taei is facing the death penalty, these violations are exacerbated, as cases involving the death penalty require that the accused be assisted effectively by counsel at all stages of the trial. However, Mr. Abdullah Ahmed Faleh Ahmed al-Taei’s legal counsel did not have access to his case file or to the alleged crucial evidence provided by a secret informant, and that they were unable to adduce and challenge evidence and to crossexamine witnesses. The Working Group noted that reliance on information provided by a secret informant, without allowing the defence the opportunity to challenge the evidence, was in violation of the principle of the equality of arms under article 14 (1) and (3) (e) of the International Covenant on Civil and Political Rights, and substantially undermined Mr. AlTaei’s capacity to defend himself in any subsequent judicial proceeding.


Moreover, the Working Group noted with grave concern the source’s submission that when Mr. Al-Taei was presented before the investigative judge for the first time on 14 September 2017, the judge insulted Mr. Al-Taei and allegedly beat him with an ashtray. The Working Group found that the alleged assault is an egregious violation of Mr. Al-Taei’s right to a fair hearing before an independent and impartial tribunal under article 14 (1) of the International Covenant on Civil and Political Rights. This lack of independence was compounded by the relationship between the secret informant who had made the allegations against Mr. Al-Taei and the judicial assistant of the Ministry of Justice, who was not only known to Mr. Al-Taei’s family, but also had a property dispute with them. These circumstances suggested due process violations relating to the initiation and conduct of Mr. Al-Taei’s case, which appeared to have been motivated by a disagreement between the families. Taking these factors into account, the Working Group found that Mr. Al-Taei was not tried before a competent, independent and impartial tribunal, in violation of article 10 of the Universal Declaration of Human Rights and article 14 (1) of the International Covenant on Civil and Political Rights, and referred this case to the Special Rapporteur on the independence of judges and lawyers, for appropriate action, before concluding that the violations of the right to a fair trial and due process were of such gravity as to give Mr. Al-Taei’s deprivation of liberty an arbitrary character that fell within category III.


CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION


In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of M. Abdullah Ahmed Faleh Ahmed al-Taei was arbitrary and fell under categories I and III because the deprivation of liberty of Abdullah Ahmed Faleh Ahmed al-Taei was in contravention of articles 2, 3 6, 7, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 9, 10, 14 and 16 of the International Covenant on Civil and Political Rights.


The United Nations Working Group on Arbitrary Detention recommended that the Government of Iraq take the steps necessary to remedy the situation of Mr. Al-Taei without delay and bring it into conformity with the relevant international norms, starting with his immediate release and accord him an enforceable right to compensation and other reparations.


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