The International League Against Arbitrary Detention urges the Government of Bahrain to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 74/2023 concerning Hasan Mushaima, Abdullah Isa Abdulla Mahroos, Abdulwahab Husain Ali Ahmed Ismaeel and Abduljalil Radhi Mansoor Makki, asking the Government of Bahrain to immediately and unconditionally release them and to accord them an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning these individuals: Opinion No. 74/2023.
FOUR MEMBERS OF 'BAHRAIN 13' ARRESTED FOR THEIR ROLE IN THE 2011 PRO-DEMOCRACY PROTESTS
Hasan Mushaima, Abdullah Isa Abdulla Mahroos, Wahab Husain Ali Ahmed Ismaeel and Abduljalil Radhi Mansoor Makki are citizen of Bahrain, born between 1948 and 1965. Prior to their arrest, they were all part of the 'Bahrain 13', a group of religious and political opposition figures who led the 2011 peaceful and pro-democracy protests in the country. According to the source, their respective arrest resulted from their leading role in these protests.
Between 17 March and 1 April 2011, Mr. Mushaima, Mr. Ismaeel, Mr. Mahroos and Mr. Makki were arrested at their respective houses by diverse security forces, including notably officers of the National Security Agency and officers of the Ministry of Interior. It should be noted that Mr. Mahroos was arrested three times in total: first in August 2010 on the basis of fabricated charges, released later; second on 17 March 2011, based on the same charges and on same day of Mr. Maishama and Mr. Ismaeel, released later; and lastly, on 1 April 2011.
They were tried altogether on 8 May 2011 before the National Safety Court of First Instance. Among others, they were charged with attempting to overthrow the Government. On 22 July 2011, they were charged with prison sentences going from 15 years to life imprisonment. Despite appealing the decision several times, the initial sentencing concerning the four individuals was upheld in January 2013. Ever since, they have all experienced different medical problems. The Government was given the opportunity to answer those allegations in front of the Working Group, which it did.
ARRESTED WITHOUT AN ARREST WARRANT AND HELD IN PRE-TRIAL DETENTION
First, the four individuals were not presented with an arrest warrant, nor informed of the reason for their arrest. Though the Government alleged the officers informed them of the existence and content of the warrants issued against them, the Working Group found this insufficient as it failed to explain why the individuals were not presented with the warrant. As such, the Working Group found that article 9(1) and (2) of the Covenant had been violated. The Working Group also noted that the ways in which the individuals were arrested, notably the searches conducted without a warrant in their respective houses, further demonstrated the illegality of their arrest.
Besides, none of the four individuals was presented to a judicial authority within 48 hours of their respective arrest. Considering that the Government did not refute these allegations, the Working Group established that their right to be promptly presented before a judge, guaranteed by article 9(3) of the Covenant, had been violated.
Additionally, the four individuals were held in pre-trial detention following their arrest, which the Working Group found was lacking proper justification, and thus in violation of article 9(3) of the Covenant. The Working Group recalled that pre-trial detention should be exceptional and last for the shortest time possible. In these circumstances, they were thus unable to challenge the lawfulness of their detention before a judicial authority, in violation of their right to do so under article 9(4) of the Covenant.
At some point following their respective arrest, each of these four individuals was detained incommunicado, so without being allowed to contact the outside world. These detentions lasted for 1 month to over 2 months. Besides, Mr. Mushaima and Mr. Mahroos were subjected to enforced disappearance too. The Government did not respond to these allegations. Considering this, the Working Group found a further violation of their right to challenge the legality of their detention, enshrined in article 9 (4) of the Covenant. The Working Group also considered that the situation of enforced disappearances contravened articles 9 and 14 of the Covenant, and that the rights of the four individuals to an effective remedy, enshrined in article 8 of the Universal Declaration of Human Rights and article 2(3) of the Covenant, and to be legally protected, enshrined in article 6 of the Universal Declaration of Human Rights and article 16 of the Covenant, had also been violated.
On the basis of the foregoing, the Working Group found that Mr. Mushaima, Mr. Ismaeel, Mr. Mahroos and Mr. Makki were detained without any legal basis, thus rendering their arrest and detention arbitrary under category I.
DETAINED FOR EXERCISING THEIR FUNDAMENTAL FREEDOMS
While the source claimed that the four individuals were arrested and detained for having exercised their fundamental rights, the Government explained it was because they had engaged in terrorist activities and attempted to overthrow the Government.
The Working Group first noted that the Government did not adequately substantiate its claim. Besides, it recalled the concern of the Human Rights Committee with regards to the serious restrictions imposed to the exercise of the freedom of expression of individuals criticising State or political officials, especially when accompanied by arbitrarily arrests and detentions. Notably, the Human Rights Committee had warned against the use of numerous vague provisions in the Criminal Code of Bahrain to criminalise peaceful protests.
Considering the above, the Working Group established that, by participating in a peaceful pro-democracy protest, the four individuals were exercising their right to freedom of opinion and expression, which includes the holding and expression of critical of, and different from, the government policy, as well as their right to peaceful assembly and association. As such, the Working Group considered that these rights, protected by articles 19 and 20 of the Universal Declaration of Human Rights and articles 19, 21 and 22 of the Covenant, were violated.
Therefore, the Working Group found that the respective detentions of Mr. Mushaima, Mr. Ismaeel, Mr. Mahroos and Mr. Makki were arbitrary under category II.
DENIED LEGAL ASSISTANCE AND FORCED TO CONFESS UNDER TORTURE
First, the source declared that the four individuals were denied access to legal counsel from the outset of their detention and during key stages as well, such as during their interrogations. This was not well-enough refuted by the Government, which still made sporadic references to lawyers being present. As such, the Working Group considered that their right to prompt recourse to effective legal representation, enshrined in article 10 of the Universal Declaration of Human Rights and article 14 (1) and (3) (b) and (d) of the Covenant, had been violated. This right being fundamentally related to the principle of equality of arms, protected by article 11 of the Universal Declaration of Human Rights and article 14 of the Covenant, the Working Group considered these articles had also been violated.
In addition, the four individuals were forced to confess under torture. The Government answered that in its final rulings in Mr. Mushaima and Mr. Ismael's cases, the court did not rely on their confessions as primary evidence. The Working Group recalled that evidence of statements obtained through torture renders the entire proceedings unfair in any case. In relation to Mr. Mahroos and Mr. Makki specifically, the Working Group found that, as they were forced to confess, their rights not to be forced to do so and to be presumed innocent, enshrined in article 14(3)(g) and 14(2) of the Covenant, had been violated. Lastly, the Working Group recalled that such practices contravene articles 2, 15 and 16 of the Convention against Torture.
Eventually, the source also explained that at different stages of the legal proceedings, the four men had different visible injuries and that they were denied medical care despite their poor health condition. In this regard, the Government claimed no such injuries were found on the four individuals, who even refused to meet with different authorities which would have checked on their health. According to the source, their refusal can be explained by the fact that these different authorities are known to conceal human rights violations suffered by prisoners and distort facts. The Working Group recalled that denial of medical care could constitute a form of torture. Moreover, it found the source's explanation concerning the refusal of the individuals to meet the said authorities to be consistent with concerns it had previously raised about their independence and effectiveness.
Henceforth, the Working Group considered that these violations of the four individuals' right to fair trial were of such gravity as to render their detention arbitrary under category III.
DETAINED ON THE BASIS OF THEIR POLITICAL OPINIONS AND RELIGIOUS AFFILIATION
According to the source, all four individuals were arrested and detained on a discriminatory basis, namely based on their political opinions and religious affiliation, which the Government did not deny. The Working Group noted that the case of Mr. Mushaima was included in the 2012, 2021 and 2022 reports of the Secretary-General, and also recalled its own jurisprudence, which notably established that another member of the 'Bahrain 13' had been arbitrarily detained on a discriminatory basis based on his opinions.
Considering the above in the context of the case, the Working Group concluded that the four individuals had been arrested and detained on discriminatory grounds, namely, their political or religious beliefs, in violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant.
Thus, the Working Group found that the respective detentions of Mr. Mushaima, Mr. Ismaeel, Mr. Mahroos and Mr. Makki were arbitrary under category V.
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 detentions of Hasan Mushaima, Abdullah Isa Abdulla Mahroos, Abdulwahab Husain Ali Ahmed Ismaeel and Abduljalil Radhi Mansoor Makki were arbitrary and fell under categories I, II, III and V because their deprivations of liberty contravened articles 2, 6, 7, 8, 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights and articles 2, 9, 14, 16, 19, 21, 22 and 26 of the International Covenant on Civil and Political Rights.
The Working Group recommended that the Government of Bahrain take the necessary steps necessary to remedy their situations without delay and bring them into conformity with the relevant international norms. The Working group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release them immediately and accord them an enforceable right to compensation and other reparations, in accordance with international law. The Working Group also urged the Government of Bahrain to implement a full and independent investigation of the circumstances surrounding these arbitrary deprivations of liberty, and to take appropriate measures against those responsible for the violation of their rights.
Eventually, the Working Group also emphasised these arbitrary detentions took place in a broader context of similar arbitrary detentions in Bahrain in recent years, and as such recalled that widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law could constitute crimes against humanity under specific circumstances. The Working Group also stated a country visit in Bahrain would be welcomed.
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