The International League Against Arbitrary Detention urges the Government of Kuwait to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 28/2023 concerning Bachar Kiwan, asking the Government of Kuwait to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Bachar (Kuwait): Opinion No. 28/2023.
SUBJECTED TO DETENTION AND ATTEMPTED EXTRADITION DESPITE FALLACIOUS CONVICTIONS
Mr. Kiwan, a dual French-Syrian national, born on 30 November 1966 in Kuwait, formerly presided over the press group project, AI Waseet International. In 2016, Mr. Kiwan was dismissed from Al Waseet International under dubious circumstances after having refused to sell the majority shares of the company to the Kuwaiti royal family, themselves owning shares in the company.
On 1 November 2017, following numerous attempts of intimidation and claims by the royal family against Mr. Kiwan, the State Prosecutor sentenced him to five years in prison with the decision to expel upon completion of the sentence. On 2 November 2017, Mr. Kiwan was arrested by secret services on the premises of his company with neither an arrest warrant nor any explanation. He was held in isolation for three days before being detained and regularly interrogated from 5 November until 19 December 2017. After having been temporarily released and under surveillance, on 27 December, Mr. Kiwan fled from Kuwait to France before being transferred to the central prison. He was then condemned in absentia four times to sentences disproportionate to his accused committed acts. On 13 February 2020, Spain’s judiciary rejected an extradition request from a high-ranked person in Kuwait and against Mr. Kiwan, based on the practice of torture and violations of fair trial rights in Kuwait.
ARRESTED WITHOUT AN ARREST WARRANT AND HELD INCOMMUNICADO FOR 50 DAYS
The Working Group considered that the existence of judgment against Mr. Kiwan does not absolve the obligation of authorities to produce an arrest warrant. International law includes the right to be shown an arrest warrant or judicial order, procedurally inherent in the right to personal liberty and security under articles 3 and 9 of the Universal Declaration of Human Rights and article 9(1) and (2) of the Covenant, which were thus violated.
Moreover, the Working Group found that the period of silence concerning Mr. Kiwan’s whereabouts and during which he had no contact with the outside world, specifically from 2 November to 20 December 2017, to be an unofficial place of secret detention. As a consequence, the Working Group considered that during this period of secret detention, Mr. Kiwan was denied the right to be promptly brought before a judicial authority following his arrest, in violation of article 9(3) of the Covenant.
Besides, Mr. Kiwan was deprived of contact and communication with anyone during the first week of captivity. The Working Group categorized this situation as one of incommunicado detention, which thereby violated Mr. Kiwan's right to challenge the lawfulness of the detention before a court under article 9(4) of the Covenant. In addition, his right to an effective remedy was overlooked, violating article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant. This situation also placed Mr. Kiwan outside the law’s protection, in violation of article 6 of the Universal Declaration of Human Rights and article 16 of the Covenant.
Therefore, considering all of the above, the Working Group concluded that the arrest and detention of Mr. Kiwan lacked a legal basis, rendering his deprivation of liberty arbitrary under category I.
NO ACCESS TO LEGAL REPRESENTATION NOR TO INDEPENDENT LEGAL PROCEEDINGS
The source alleged that Mr. Kiwan was not allowed to be represented by a lawyer during the successive interrogation sessions that were held between the 2 November and 20 December 2017. Additionally, when Mr. Kiwan asked to have access to a lawyer, he was told that he was in the house of the royal family where he had no rights. The Government answered this allegation, but it was deemed insufficient by the Working Group for only providing general statements concerning the protections guaranteed under domestic law to Mr. Kiwan, rather than answering whether such protections were indeed respected in this case. As such, the Working Group found that Mr. Kiwan's right to legal assistance, guaranteed under article 14 of the Covenant, was violated.
Concerning multiple acts of intimidation against the lawyers representing Mr. Kiwan from September 2016 and November 2017, including the prison sentences decided for two of them, the Working Group established that such acts were contrary to articles 10 and 11 of the Universal Declaration of Human Rights and article 14(3)(b) of the Covenant.
Furthermore, Mr. Kiwan was tortured during the time in which he was detained incommunicado and interrogated. Noting the insufficiency of the Government's answer, as too broad, the Working Group referred the case the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. Besides, the Working Group also found that Mr. Kiwan’s rights to not be compelled to confess guilt under article 14(3) of the Covenant, and to fair trial under article 13 of the Covenant and article 10 of the Universal Declaration of Human Rights, had both been violated.
Eventually, the source alleged that the legal proceedings against Mr. Kiwan were politically motivated since the judiciary branch lacked independence from the executive one. Among others, the dubious condemnations of two of Mr. Kiwan's lawyers during the proceedings and the presence of three out of five of the same judges during the various proceedings against Mr. Kiwan prove that. Finding the Government's answer insufficient, the Working Group found that Mr. Kiwan's right to be tried by an independent and impartial tribunal, guaranteed by articles 10 of the Universal Declaration of Human Rights and 14 of the Covenant, was violated.
In these circumstances, the Working Group concluded that the breaches of a fair trial which occured during the detention of Mr. Kiwan were of such gravity as to determine that the deprivation of his liberties was arbitrary in nature, falling 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 Bachar Kiwan was arbitrary and fell under categories I and III because it contravened 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 United Nations Working Group on Arbitrary Detention recommended that the Government of Kuwait take the steps necessary to remedy the situation of Bachar Kiwan without delay and bring it into conformity with the relevant international norms, starting with according him an enforceable right to compensation and other reparations, in accordance with international law.
The Working Group urged the Government of Kuwait to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Kiwan and to take appropriate measures against those responsible for the violation of his rights.
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