BCHR:Bahrain-The Public Prosecution and its Violations to Human Rights

A Report on its Role in Obstructing, Harassing and Targeting Human Rights Defenders and Political Activists: Bahrain-The Public Prosecution and its Violations to Human Rights The Bahrain Center for Human Rights September 2009 “Prosecutors, as essential agents of the administration of justice, shall at all times maintain the honour and dignity of their profession” Guidelines on the Role of Prosecutors- Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders

The Prosecution did not the play the role of the honorable opponent in many of the cases, as it is mandated to do. Yet, it kept in line with the results and coincided with the suspicious investigations that were carried out by the intelligence agency or what is known as the “National Security Apparatus”, and it worked on pressurizing the defendants to repeat the confessions that are believed to be taken under torture during their stay in the investigation offices and centers of the National Security Apparatus. The Bahrain Center for Human Rights has documented many testimonies that confirm that some of the detainees faced torture in the hallways of the Prosecution building, and that the heads of the Prosecution threatened the defendants and coerced them to admit and sign confessions that have been prepared in advance, or threaten to take them back to investigation and torture centers to force them to do so. What adds to the concerns of the BCHR is the participation of the Prosecution in the blatant violations to the rights of the defendants by denying their testimonies or disregarding the torture marks that were usually apparent on their bodies due to what they faced during the initial period of detention. The Prosecution has also violated the law more than once, when it is supposed to be the body that contributes in applying and maintaining it. As an example, it approved the display of the confessions of the detainees in what was dubbed as “Al-Hujjairah” case on the State television. These confessions were extracted during the interrogation period, before the beginning of the trial and before charging them. They were, later, proved to have been manipulated with the complicity of the Prosecution and that they (The confessions) were been extracted under torture. At the time, the Public Prosecution (PP) is lenient with the arrest procedures, the gravity of charges and punishments in the criminal cases that are related to the possession of weapons, major drug trafficking offenses or sexual assaults on children, it has been overly stringent with the procedures and charges when the matter relates to detainees accused of participating in public activities or protests of the Shiite community.

The BCHR envisages that the above-mentioned violations of the Public Prosecution are due to the intervention of its actual work with the security bodies, the National Security Apparatus in particular. Also, the background of most of the members of the PP come from military and security institutions who dealt with such detainees during the public protests in the past, and were involved in human rights violations. The BCHR, therefore, does not expect the Public Prosecution, in light of its current structure, to play the role it is mandated to do; achieving justice, especially in the political and human rights issues, and those stigmatized by the Authorities as “destabilizing security” due to its relation with the public protests. Structure and Mandates of the Public Prosecution Until 2002, the Public Prosecution was called the Office of Attorney General and was part of the Ministry of Interior and under the direct supervision of the Minister of Interior himself, according to the reorganization plan of the Ministry of Interior, prescribed by Decree no. 29 of 1996 [1]. As per Article 6 of the Criminal Procedures Decree no. 46 of 2002, promulgated on 23 October 2002, ” the term ‘Code of Criminal Procedure’ replaces the term ‘Code of Penal Trials Procedures ‘, the term ‘Public Prosecution’ replaces the term ‘office of Attorney General ‘, and the term ‘Public Prosecutor’ replaces ‘Attorney General’… wherever they appear in laws and regulations in force” [2]. It is apparent from the phrasing that Article that the title of “Attorney General” was changed but there was no indication to the formation of an independent organization. Rather, it reinforced the belief that what happened was a change in the official hierarchy (where the organization belongs to) of the body which was renamed as Public Prosecution – such that it is a subordinate of the Ministry of Justice instead of being the Ministry of Interior. It is to be noted that both ministries are headed by a member of the ruling family, who are also members of the Supreme Defense Council (SDC) which sets the foreign and internal security policies. SDC is made up of 14 political leaders and ministers, all of them are members of the ruling family. It is evident that the presence of the Attorney General (AG) under the supervision, guidance and administration of the Ministry of Interior ensures the loyalty of its members to the security bodies and the Executive Authority. The AG was not expected to stand as an opponent in any of the cases against any member of the Security and Executive Authorities. This would include cases of torture and abuse against members of the security bodies, extrajudicial killings inside and outside prison, and what was deemed as crimes against humanity by any of the employees of the Ministry of Interior. In the Judicial authority’s amendments, as prescribed in Decree no. 42 of 2002, the authority specified a special section for the Public Prosecution in the fourth chapter of the law where it considers it, “an integral part of the divisions of the judicial authority, exercises the functions that are prescribed legally, and can exclusively initiate the criminal procedures unless otherwise stated in the law”. “The Minister of Justice shall control and supervise the Public Prosecution and its members. The Public Prosecution members follow their heads according to their ranks, and they act on behalf of the Attorney General in practicing their jobs, and they all follow the Minister of Justice”. The fact that majority members of the Public Prosecution were originally employees of the Ministry of Interior (See below), except for those who joined the Prosecution after it was formed (renamed), was evident on their performance, attitude and inclination in dealing with a security and military mentality. This was proven by the testimonies of those arrested in the cases of public protests.

This background and structure of the Public Prosecution in the senior positions starting from the Attorney General, prosecutors and heads of prosecution led directly to fixing charges – coercively – against anyone detained by the security apparatuses. The role of the Prosecution (PP) focuses on arranging confessions prepared in advance and working on documenting its details with the ones presented by the security and intelligence apparatuses in the interrogation and torture centers. Moreover, the PP works on searching for articles of the existing laws that would criminalize the detainees based on those charges and following it up in the Courts. The Public Prosecution basically relies on the evidences and testimonies prepared by the security apparatuses and tries to comply with it even during the interrogation with the detainees which is usually at midnight or at dawn. It also insists on denying all the violations of those apparatuses as well as the abuse and torture whose effects are usually apparent on the bodies of the detainees. This runs completely counter to the Guidelines on the Role of Prosecutors adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, where Article (3) states that “Prosecutors, as essential agents of the administration of justice, shall at all times maintain the honour and dignity of their profession”. In addition, Article (16) asserts that “When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.” What is striking is that all cases that were related to public protests, usually linked by the Authorities with the internal security, which involved prosecuting well known activists and human rights defenders been taken over by PP heads who had military or security positions in the past. This in turn was reflected on the manner they dealt with the accused and their transgressions as well as the violations of the standards and internationally known values of the Public Prosecution, as will be detailed later. No doubt that the tribute received by the PP members by virtue of the superior positions in the judicial authority, issued by royal orders and decrees, will ensure their permanent loyalty to the authority. This justifies the Prosecution’s (or previously the Office of Attorney General) inclination to secure the criminalization of the political opponents and defenders of human rights before the state courts, where the Public Prosecution and Judiciary – which is also biased and not independent – are in accordance with each other at the expense of the defendant who is always the victim. Some Members of the Prosecution and their Jobs Background 1. Ali Fadhl Al-Bu’ainain –Attorney General at the rank of a minister – was working as an officer in the Office of Attorney General at the Ministry of Interior. He was then appointed as vice-president of the security committee, formed during the unrests of the nineties. This committee has been accused of exposing the activists and detainees to torture, which in some of the conditions, led to permanent physical and mental disabilities, and to extrajudicial killing in several documented cases. At the rank of a Colonel, Al-Bu’ainain later held the position of Director of Department of Legal Affairs, which subsides directly under the Minister of Interior according to Decree no. 29 of 2003 on the organization of the Ministry of Interior. He represented the Ministry of Interior in various official committees at the local and regional levels, the last of which was the security committee formed by the Prime Minister on 19 October 2004 to study the causes of “crimes” in that period [3]. Five days after the previous resolution, he was appointed by a Royal Order dated on 24 October 2004 in the Public Prosecution in the rank of First Lawyer, which is equivalent to Deputy, the Court of Cassation [4]. In September 2005, another Royal Order was issued to appoint Al-Bu’ainain as Attorney General at the rank of a minister [5]. 2. Hameed Habib – General lawyer in the Public Prosecution – worked as a researcher in the office of General Attorney at the Ministry of Interior, then head of legal affairs at the Northern Governorate which is a subsidiary of the Ministry of Interior. Habib was appointed in 2005 in the post of Head of Prosecution type (A), which is at the rank of a head of High Court. 3. Ahmed Al-Dossery – General lawyer in the Public Prosecution – worked as an officer in the Criminal Investigations Bureau at the Ministry of Interior. 4. Nawaf Abdullah Hamza – General lawyer in the Public Prosecution – worked as an officer in the Minister of Interior before joining the Public Prosecution. Hamza was appointed in 2003 as a deputy Attorney General [6], then in 2005 [7] and 2007 [8], respectively, in the post of head of prosecution type (B) in the rank of a judge then a deputy at the High Court. 5. Osama Ali Jassim Al-‘Oufi – Head of Prosecution – worked as an officer at the Ministry of Interior before joining the Public Prosecution. He was appointed in 2003 in the post of a deputy of the Attorney General. Al-‘Ofi was promoted in the years 2005 and 2007, respectively, to the post of Head of Prosecution type (B) in the rank of a judge then as a deputy at the High Court 6. Nawaf Mohammed Hamad Al-Mu’awda – Head of Prosecution – worked as an officer at the Ministry of Justice before moving to the Public Prosecution. He was appointed in 2003 as deputy of the Attorney General. It is worth mentioning that in a period that does not exceed five years more than 20 deputies to the attorney general were appointed, before promoting some of them to the rank of a judge or head of prosecution. In the same period, more than 25 were appointed as assistant to the Attorney-General. The criteria of recruitment depend on their acquaintances and relations with some officials in the Public Prosecution, the Ministry of Interior or Ministry of Justice. What is also noted in the recruitments in the Public Prosecution is the high pace in the promotions to hold senior positions. Paragraph (A) of Article (2) of the Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, states, “Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice, excluding any discrimination against a person on the grounds of race, colour, sex, language, religion, political or other opinion, national, social or ethnic origin, property, birth, economic or other status, except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned”.

Before the full establishment of the PP, non-Bahraini employees were recruited with temporary contracts, on the expense of the qualified Bahrainis whose political loyalty to the authority is not guaranteed. Since 2003 and until the re-location of members of the former attorney-general office of the MOI to their new post at the Ministry of Justice, a group of legal advisers of Arab nationalities, the majority were Egyptions, were taking the posts of the public prosecution. Some of those names are: · Mohammed Rafat Mustafa Barghash who was a senior general lawyer. · Ahmed Ra’fat Abdul-Mune’m Shenaishen who was a senior general lawyer · Shareef Hasan Abdullah Shadi at the post of general lawyer · Mukhtar Ahmed Ibrahim Mahmood who was head of prosecution type (A) · Mahmood Mustafa Mursi Al-Daqqaq as head of prosecution type (A( · Ashraf Kamal Abdul-Haleem Abdullah as head of prosecution type (B( · Hani Ahmed Fahmi Darwish as head of prosecution type (B( · Wajeeh Kamal Hasan Abadha as head of prosecution type (B( Violations of the Prosecution The BCHR received numerous complaints and reports on the Public Prosecution’s gross violations of human rights. These will be briefed highlighting the most flagrant and taking into consideration the reservation to publicize the names of detainees and lawyers who contributed in documenting these violations for their own safety. However, the Center will be ready to provide and announce those names and the details in any investigation carried out by an independent body. Noteworthy, the Prosecution was recently accused of manipulating the testimonies of prosecution witnesses in some of the cases which proves that the corruption has penetrated into those institutions that are initially accused of prejudice. Following are some of the violations of the Prosecution that have been documented: Late Night Interrogations Many victims and detainees complained that the Public Prosecution interrogated them at very late hours of the night or at dawn, and usually, after questioning for long hours and exposing them to torture and ill-treatment by members of security apparatuses. The last episode which involved such act was the Prosecution’s interrogation to children in Salmaniya Hospital who were fired upon in Sanabis by members of the Special Forces. The children and their families indicated to the local press that the interrogation was in their rooms at the hospital, without the presence of a lawyer, started at about half past twelve after midnight and ended at dawn. This was also the case with the detainees of the events in December 2007, December 2008, and the detainees of Karzakan and Ma’ameer who were all interrogated at late hours at night. Interrogation without the Presence of Lawyers There have been numerous cases in which the detainees were brought to the Prosecution very late at night, without the knowledge of their families or lawyers. Testimonies confirmed the persistence of the detainees to summon their lawyers during the interrogation in the Public Prosecution; however the prosecutor usually denies their request on the grounds that it is too late in the night to summon the lawyers. The prosecutor then insists on initiation and continuing the interrogation without any form of legal representation. This was the case with the detainees of December 2007 and the detainees of 2008, as well as the detainees of Karzakan. Article (12) of the Guidelines on the Role of Prosecutors, states, “Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.” Threatening and Forcing the Defendants to Sign Ready Confessions- Torture in the PP building Detainees and victims of torture confirmed that heads of prosecution threatens or shouts at them to coerce them to admit or sign ready confessions that correspond with the confessions that have been extracted under torture. In case the defendant refuses to sign, the prosecutor threatens the detainee to call for his return to the same place he was interrogated for more torture. This has been confirmed by more than one detainee. Some even asserted that the prosecutor keeps the door of his office opened during the interrogation and allows the intelligence officer, who is in charge of the torture, and usually accompanies the detainee, to stand by the door to terrify him and force him to sign the ready statements taken under torture. Testimonies of some of the detainees indicated that those who refused to sign ready statements presented to them by the head of prosecution were returned to the detention centers to face a share of torture, before being returned and forced to sign the prosecution papers without having the chance to read it or know what confessions were made against himself. Other detainees testified that they refused to sign ready statements prepared by the prosecutor, and those were not returned to the detention centers again, but were taken to a room next to the Prosecution representative. Those detainees were faced with beating and kicking within earshot and in full view of the prosecutor. This has negatively impacted many detainees, who already experience a state of terror as soon as they enter the Prosecution building, where they are abused and ill-treated. Such attitude hastened them signing to sign confessions that prepared in advance by prosecutors without having seen its content.

These shameful acts of the Public Prosecution body contradict all the international standards, its members should abide by, particularly Articles (12) and (16) of the Guidelines on the Role of Prosecutors that have been referred to above. Violating and Breaking the Law The Prosecution violated the law more than once by using authorities it is not even entitled to. At the end of the year 2008, in what was known as “Al-Hujjairah Plot”, the Prosecution agreed to the request of the National Security Apparatus (NSA) to publicize the confessions and identities of those detained, during the period of arrest and investigation, while their case had not been transferred to the court yet. The Ministry of Information and some local newspapers, based on the approval of the head of prosecution directly responsible for the case, published the confessions which were recorded and broadcasted on Bahrain TV channel and in the newspapers without the knowledge or consent of the detainees or their lawyers. Hence, the Prosecution conspired with the National Security Apparatus in criminalizing those detainees in the public view before presenting their case to court, which is incompatible with the articles of Decree Code no. 46 of 2002 of the Criminal Procedures and that of Penal Code no. 15 of 1976 in revealing the identity of the defendants, exposing and ruining their reputation, let alone the effect it has on the course of justice by utilizing the media. The Guidelines on the Role of Prosecutors in the Criminal Proceedings indicate, in Article (13), on the necessity of “Keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise; Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”. Overlooking Torture Cases and Opposing Independent Medical Reports Testimonies of detainees as well as some of their lawyers have recurred that Prosecution representatives overlook the documentation of torture cases which are usually fresh in front of them, or when the detainee expresses orally and/or by showing the torture scores which are apparent on his body. These signs on the detainee were due to the ill-treatment to extract forced confessions he was exposed to when he was at the Criminal Investigation Bureau (CIB) or in the Police Fort- NSA Headquarter. Moreover, the Prosecution took a negative stance in dealing with the reports of the medical committees and was defending the security apparatuses and their violations, abuse and torture which were mentioned by more than one detainee and in more than one case. The Prosecution considered a default position of challenging and questioning those testimonies and reports, at a time where it was supposed to initiate an immediate investigation n the torture claims and present to the court those proven to practice torture. Article (15) of the Guidelines on the Role of Prosecutors, states, “Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences.” The Role of the Public Prosecution While it is expected from the Prosecution body to be an honorable opponent, the attitude of the members of this organization, their security and military background which is characterized by trying to exhibit their loyalty to their subordinates as well as their prejudice. This has revealed a repetitive tendency of the Public Prosecution to search for legal articles that criminalize activists and human rights defenders, after the success of the latter and their activities in compelling the authorities and exposing their systematic violations. The case of the young man, Hasan Ali, who was accused of publishing information about the NSA – and was sentenced on 16 September 2009 to three years imprisonment – has disclosed the Public Prosecution’s intentions in targeting human rights defenders and the attempt to incriminate them. This highlights the role and conduct of the Prosecution which disregarded all complaints filed by the activists on smearing their reputation and the harassments practiced by those who are servile to the security apparatuses, (among the complaints that the Prosecution have disregarded: the smearing campaign by using SMS messages from mobile phones in December 2005 against Sheikh Ali Salman – Secretary General of Alwefaq Society, as well as against Mr. Hasan Mushaima – Secretary General of Haq Movement in February 2006, in addition to various harassments and threats to Mr. Nabeel Rajab – president of the Bahrain Center for Human Rights- and his wife since 2005).

The Prosecution strived to criminalize activists by using laws that violate rights and which are locally and internationally condemned because they contradict the most basic standards of human right (Gatherings Code, Penal Code, Counter Terrorism Law, Civic Societies law and others). This achieved with the support of the Bahraini judiciary which is known for its lack of independence or impartiality. The Demands of the BCHR Based on the above, and in order to achieve justice and secure its proper function and integrity, the Bahrain Center for Human Rights calls for the following: 1. The Public Prosecution body should comply and adhere with the international standards related to its function and duties, in particular and foremost the Guidelines on the Role of Prosecutors adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders in September 1990. 2. Changing the current team of the Public Prosecution, starting from the Attorney-General and including heads of prosecution and prosecutors, and to recruit a specialized and experienced team with a good repute, and whose record is devoid of any connection with the security or military apparatuses or previous records of violations of human rights. 3. Reinitiating the interrogation in all the cases mentioned earlier, in which the Prosecution played an active role in convicting the activists and subjecting them to torture, abuse or illegal procedures that contradict the international standards to which Bahrain vowed to adhere to. 4. To lift the immunity of the current members of the Prosecution and present the perpetrators to the court for the charges of: – Conspiring with the intelligence and security apparatuses – Concealing the violations of human rights and the detainees – Transgressions that amount to crime against humanity, public right and the right of the defendants.

References: [1] www.legalaffairs.gov.bh/Portals/0/Dept_LegalLaw/D2996.htm [2] www.legalaffairs.gov.bh/Portals/0/Dept_LegalLaw/L4602.htm [3] Premier Council Resolution no. 44 of 2004 to form a security committee and define its terms of reference on 19 October 2004 [4] Royal Order no. 34 of 2004 to appoint senior general lawyer at the Public Prosecution on 24 October 2004 [5] Royal Order no. 30 of 2005 to appoint of the Attorney General on 24 December 2005 [6] Royal Order no. 5 of 2003 to appoint members of the Public Prosecution on 28 January 2003 [7] Royal Order no. 16 of 2005 to appoint heads of prosecution types (A) and (B) on 9 July 2005 [8] Royal Order no. 27 of 2007 to appoint heads of prosecution type (B) on 4 October 2007

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