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. 34/2023 concerning Adel Attia Khudair, Raad Mohsin Ghazi Al-Hares and Bahaa Abdul Hussein Abdul Hadi starting for the Government of Iraq 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 (Iraq): Opinion No. 34/2023.
UNLAWFULLY ARRESTED AND SUBJECTED TO ENFORCED DISAPPEARANCE
The three applicants of the complaint before the UN Working Group on Arbitrary Detention held various positions within the Iraqi private sector. All three individuals were arrested in September and October 2020 by members of the Anti‑Corruption Committee that was established on the basis of Executive Order No. 29 (known as Committee No. 29), subjected to enforced disappearance and incommunicado detention before being sentenced to four to six years of imprisonment following trials that did not respect due process guarantees.
Adel Attia Khudair, born on 14 October 1961 in Baghdad, holds Iraqi citizenship and worked as General Manager of the Agricultural Bank. Raad Mohsin Ghazi Al-Hares, born on 1 July 1955 in Al-Najaf, worked as an engineer and as the energy adviser to the Prime Minister. As per Bahaa Abdul Hussein Abdul Hadi, born on 15 August 1969, he worked as manager of the Qi Card smart card company.
The Working Group found that the three individuals were not presented with arrest warrants upon their arrests and that they were subjected to enforced disappearance, in breach of article 9 of the Universal Declaration of Human Rights and 9 (1) of the Covenant. Moreover, with regards to the incommunicado nature of their detention, the Working Group noted that the three individuals were unable to challenge the lawfulness of their detention, in violation of their right to an effective remedy under article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant.
For the above reasons, the Working Group concluded that their detention lacked a legal basis rendering their deprivation of liberty arbitrary under category I.
VIOLATIONS OF THE RIGHTS TO A COMPETENT, INDEPENDENT AND IMPARTIAL TRIBUNAL, AS WELL AS TO A PROPER DEFENCE
The Working Group recalled that under article 14 (1) of the Covenant, everyone has the right to be tried by a competent, independent and impartial tribunal. It noted that Messrs. Khudair and Abdul Hadi were sentenced by the Central Anti-Corruption Criminal Court in Karkh, which had been established by the Supreme Judicial Council, in violation of article 95 of the Constitution of Iraq which provides that "the establishment of special or extraordinary courts is prohibited". The Working Group also noted that the hearings for Mr. Khudair’s trial, held in the Federal Court of Cassation preceding the 9 November 2022 decision, were presided over by the same judges who presided at the Central Anti-Corruption Criminal Court during the retrial. Therefore, the Working Group concluded that Messrs. Khudair and Abdul Hadi were not tried before a competent, independent and impartial tribunal, in violation of article 10 of the Universal Declaration of Human Rights and article 14 of the Covenant.
Moreover, the Working Group found that the three individuals’ rights to have adequate time and facilities for the preparation of their defence and to communicate with counsel of their choosing were undermined at key stages of the legal proceedings, in contravention of article 14 (3) of the Covenant. It noted that the trials and retrials of Messrs. Khudair, Al-Hares and Abdul Hadi consisted of only one hearing, which included the passing of the sentencing. At the trials, the defendants could not present arguments, their lawyers could not speak with them separately before the hearings, and the court did not investigate the allegations of torture. Moreover, Messrs. Khudair, Al-Hares and Abdul Hadi were not permitted to adduce and challenge evidence and to cross-examine witnesses.
Hence, the Working Group concluded that the numerous violations of the applicants to a fair trial and due process, mentioned above, were of such gravity as to render their deprivation of liberty arbitrary under category III.
CONCLUSIONS OF UN WORKING GROUP AGAINST ARBITRARY DETENTION
In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detentions of Adel Attia Khudair, Raad Mohsin Ghazi Al-Hares and Bahaa Abdul Hussein Abdul Hadi are arbitrary and fall under categories I and III because their deprivation of liberty contravenes articles 3, 6, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 9, 14 and 16 of the International Covenant on Civil and Political Rights.
The Working Group requested the Government of Iraq to take the steps necessary to remedy the situation of Messrs. Khudair, Al-Hares and Abdul Hadi without delay and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to release Messrs. Khudair, Al-Hares and Abdul Hadi immediately and accord them an enforceable right to compensation and other reparations, in accordance with international law. The Working Group urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Messrs. Khudair, Al-Hares and Abdul Hadi and to take appropriate measures against those responsible for the violation of their rights.
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