Report On Front Line Hearing Observation: Human Rights Defenders In Bahrain

· Dr. Abduljalil Al-Sengai (spokesman and Director of the Human Rights Bureau of the Haq Movement for Civil Liberties and Democracy);

A report of the hearing of:

· Ali Abdulemam (blogger and owner of bahrainonline.org);

· Dr Mohammed Saeed (board member of the Bahrain Centre for Human Rights),

High Criminal Court, Manama, Bahrain – 11 November 2010

INTRODUCTION

Front Line works worldwide for the protection of human rights defenders at risk, people who work, non-violently, for any or all of the rights enshrined in the Universal Declaration of Human Rights.

Front Line publicly reported on numerous occasions on the trial against a number of human rights defenders facing charges of “terrorist” activities in Bahrain, and repeatedly called for their release and for the charges to be dropped as they appeared to be motivated by their legitimate human rights work.

Front Line commissioned Ms Charlotte Peevers, an English qualified Barrister, to conduct a visit to Bahrain in early November 2010 to observe the proceedings. Ms Peevers attended the session of the trial held on 11 November 2010 before the High Criminal Court.

Ms Peevers sought to meet with representatives of the Ministry of Justice and the Public Prosecutor’s Office. Ministry of Justice Officials indicated they were unwilling to discuss the case as both the Minister of Justice and his Deputy were out of the country at the time.Unfortunately, although the PPO did appear willing to discuss the trial there were apparently bureaucratic difficulties that prevented a meeting. It was, however, possible to meet with lawyers of the detainees, human rights activists, and family members of the detainees.

HUMAN RIGHTS IN BAHRAIN: THE LEGISLATIVE FRAMEWORK

Under Bahraini law, trial proceedings are more akin to a inquisitorial system, and therefore closer to the civil law than common law system. The Public Prosecutor’s Offce (PPO), a branch of the judiciary, is charged with investigating all criminal matters brought before it by the police or national security. Following interrogation by the PPO, trial proceedings may or may not be launched depending on the evidence.

Bahraini Law

Bahrain’s penal code criminalises the use of “torture, force or threats, either personally or through a third party, against an accused person, witness or expert” in order to induce a person to confess to an offence or to offer statements or related information[1] It also provides that civil servants (and any other persons) who engage in torture shall be subjected to a term of imprisonment.

The code of criminal procedure provides that anyone arrested or detained must be treated “in such a manner as to maintain his human dignity and shall not be subjected to any bodily or psychological harm.”[2] Further, the law requires that interrogations of those detained be conducted by the Public Prosecution Office in the presence of the accused person’s lawyer.[3] As a remedy for violations of these provisions, Bahrain’s constitution provides that any “statement or confession proved to have been made under torture, inducement, or such treatment, or the threat thereof, shall be null and void.”[4]

Bahraini law requires that suspects be presented to the Public Prosecution Office within 48 hours of arrest.[5] When the Public Prosecution Office issues a summons or an arrest warrant, the arresting authority must present the suspect to them “immediately” or, if not feasible, within 24 hours.[6] The Public Prosecution Office must decide whether to charge the suspect with a criminal offence and, if the individual is charged, whether to continue his detention or order his release.[7] A person may be held for up to seven days in pretrial detention, after which a court may authorise additional pretrial detention of up to six months.[8] The Public Prosecution Office, however, has the power to extend pretrial detention for up to a total of 45 days for offences found in the special section of the penal code involving national security crimes.[9] The High Criminal Court must approve any pretrial detention exceeding 45 days in the context of national security crimes.[10]

The Public Prosecution Office is charged with investigating and prosecuting all crimes, which would include torture.[11] The Public Prosecution Office can also demand that law enforcement agencies investigate and punish breaches of duty by their officers.[12] Civil servants, medical professionals, and other civilians are required to report crimes to the Public Prosecution Office or other relevant authorities.[13]

Under Bahraini law victims of torture can also seek redress through a civil action.[14] However, Decree 56/2002 confers immunity from investigation or prosecution on government officials alleged to be responsible for torture or other serious human rights abuses committed prior to 2001. These provisions, on their face, appear to violate the Convention against Torture (on which see below).

Constitution of the Kingdom of Bahrain

Article 19 – Prohibition against Torture

“d. No person shall be subjected to physical or mental torture, or inducement, or undignified treatment, and the penalty for so doing shall be specified by law. Any statement or confession proved to have been made under torture, inducement, or such treatment, or the threat thereof, shall be null and void.”

Article 20 – Criminal Trials

“c. An accused person is innocent until proved guilty in a legal trial in which he is assured of the necessary guarantees to exercise the right of defence at all stages of the investigation and trial in accordance with the law.

f. The right to litigate is guaranteed under the law.”

Relevant provisions in international law

Bahrain has ratified both the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT). A number of their provisions are relevant to the hearing, including:

· ICCPR Article 7 (Prohibition of Torture), Article 9 (Right to Liberty and Security of Persons), Article 14 (Right to a Fair Trial), Article 19 (Right to Freedom of Expression), Article 22 (Right to Freedom of Association);

· CAT Article 1 (Definition of Torture), Article 4 (Criminalisation of Torture), Article 11 (Prohibition of Torture for those in Custody), Article 12 (Investigation of Acts of Torture), Article 13 (Right of Complaint to the Competent Authorities), Article 14 (Right of Redress), Article 15 (Prohibition against Evidence obtained under Torture).

Relevant are also the provisions included in the United Nations Declaration on Human Rights Defenders.[15]

THE HEARING

Background

On 28 October 2010 the opening session of the trial began before the High Criminal Court in Manama of 23 members of the Shi’a community who were arrested in August and September and who face charges of setting up, joining and financing a group which aims to overthrow the government and cancel the constitution and which uses “terrorism” as one of the methods to achieve these goals. Two other men, charged in the same case and who reside outside Bahrain, are being tried in their absence.

The trial was observed by the French, British and American Embassies and by Amnesty International. The Amnesty International report noted that the trial was taking place at a time of national elections, held on 23 October, and against a background of recent unrest and clashes between the security forces and protestors, mostly youth from within the Shi’a community, who complain that they are discriminated against by the government. This sparked a rise in tension that threatens the significant improvements in human rights made in the years immediately following King Hamad bin Issa Al Khalifa’s accession to the throne in 1999. Amnesty noted that in recent months, scores of people have been arrested and prosecuted for participating in violent protests, though most have then been pardoned and released. Others currently remain in prison and are on trial or awaiting trial.[16]

History of Proceedings

On 28 October human rights defender Ali Abdulemam and 10 other defenders were put on trial in Manama, Bahrain charged with being part of an alleged “terrorist network”. All of the defendants denied such charges. All but one of the defendants claimed that they had been tortured during their period in detention.

Prior to the commencement of the trial, lawyer Hassan Radhi spoke on behalf of all the defendants’ lawyers stating that they had not been allowed access to their clients since their arrest, a breach of both Bahraini and international law.

Mr Radhi requested time to consult with the clients before the beginning of the trial. The judge then ordered that the courtroom be cleared of everyone except the lawyers and the detainees, and permitted the lawyers 30 minutes to converse with their clients before the proceedings commenced. During the trial each of the detainees addressed the court and denied all charges filed against them. All but one of the detainees alleged that they had been tortured while in detention. A number of the detainees revealed marks on their bodies to the court to demonstrate that they had been subjected to beatings and torture.

The defence made further submissions. First, they argued that in light of the allegations of torture and coerced confessions, the public prosecutor’s investigation should be conducted again, in accordance with article 176 of the Code of Criminal Procedure. The defence further requested that the proceedings be halted until the detainees could be medical assessed by a specialist medical committee, independent of the public prosecutor’s office.

The defence also requested the release of all the detainees and that if they are not released, that they be removed from National Security Apparatus (NSA) detention to a different facility where they are not be held in solitary confinement and are provided access to their lawyers and families.

The judge ordered that the detainees be removed from the National Security Apparatus and be placed in a different detention facility. He also stated that five of the detainees should be seen by a physician. The judge also granted the detainees access to their lawyers and instructed that they be allowed visits from their families. The judge ordered that all the case documents be made available to the defence which, up until that time, had not bee seen by the defence. The trial was adjourned until 11 November.

Although these appeared to be positive steps taken by the court, it transpired that the detainees were not in fact moved from NSA detention until a week later, and one day before their access to lawyers. In the interim they remained in solitary confinement. A number of the detainees reported being subjected to further torture and beatings following the hearing on 28 October.[17]

Trial Observation – 11 November

The second session of the trial took place on 11 November 2010 at the High Criminal Court, Bahrain and was observed by representatives of the French, American and British Embassies as well as by Front Line. The defence team, consisting of 22 lawyers all acting pro bono and representing the defendants as a whole rather than individuals, made the following submissions:

1. The defence had been prevented by the public prosecutor from meeting their clients until ten days after the court order was promulgated. This, the defence alleged, was a clear violation of the judge’s ruling.

2. A number of detainees had just disclosed to the defence that they had been tortured and beaten since the lawyer’s visit, and in any event, subsequent to the previous session. In the circumstances, the defence sought a short adjournment to take instructions on these allegations. The defence also requested that the individuals be permitted to address the court to give evidence of their treatment.

3. The defence were not in a position to proceed to trial today. Not only did these allegations raise further concerns about the detainees’ treatment, they also confirmed the need to halt proceedings until a thorough investigation could be carried out. Further, the defence had been provided with only one copy of the court file and it had proved impossible to prepare for trial in those circumstances.

4. The defendants had been defamed in the media despite the reporting restrictions imposed by the judge. The defence argued that these media reports had been at the behest or at least acquiescence of the public prosecutor’s office and had not only attacked the defendants but, worryingly, the integrity of the defence lawyers. In one publication Mohammed Al Tajer had been named and photographed under the caption “terrorist”. Fellow defence lawyer Mohammed Ahmed made a direct allegation against the public prosecutor that his office had been behind the media attacks.

5. The defence repeated the defendants’ allegations that during the public prosecutor’s interrogation a number of them had not been given the opportunity to have recorded the extent of their injuries and whether they appeared to be marks consistent with the allegations of torture.

The judge refused the application for a short adjournment on the basis that he had previously ordered that detainees could have access to their lawyers and that any issues ought to have been discussed at these meetings.

The defence then demanded that the court investigate the veracity of the defendants’ torture allegations and listen to them to allow them the opportunity to recount what they have suffered since the last hearing. This was essential because the entire case rests on confession which appear to have been coerced through physical violence or at the very least threats of violence and are therefore not credible.

The defence provided a list of names of those detainees who still bore marks of torture and beatings. The court had not entered on the court record the injuries that defendants had shown them on the last occasion: the judge only indicated that the “defendants are showing me their legs”. The defence submitted that this was insufficient in terms of investigation of the alleged torture and also prejudiced the defendants in seeking to prove that they had been tortured because with the passage of time that evidence would eventually disappear.

The judge refused the application for the defendants to address the court, stating that they had previously had an opportunity to address the court and had done so. The judge then asked why the detainees had not been subjected to medical examination.

The defence indicated that this was opposed because the medical examination office was within the public prosecutor’s office. Detainees had provided evidence to them of one medical examination taking place whereby the doctor sat behind his desk through the entire medical examination and never got up to inspect the detainee’s injuries (this account was given by Dr Saeed, a trained dentist, to his legal team). His report concluded that his injuries were consistent with self-harm, though it appeared that there had been no psychiatric report (or expertise on behalf of the medical examiner).

The Public Prosecutor objected to the defence on the following:

1. The PP denied that there was any need for a further investigation to be conducted by the PP in light of the torture allegations. He stated that it was for the court to act as the final investigator and to determine the truth.

2. In respect of the medical examiner, although dependent on the public prosecutor’s office, he had specialist knowledge about conditioning injuries which were not available to a regular doctor.

3. The defendants have failed to establish the PP’s violation of the law and have not proved injuries to the defendants. For example at page 55 of the PPO records of investigation injuries were mentioned by a detainee in the presence of his lawyer at the PPO investigation. The PPO ordered a forensic medical examination to determine if the injuries were consistent with the allegation of torture and this came back as negative. This demonstrated that the PPO had ensured that such allegations are properly investigated.

The defence responded that the PPO’s position was unequal with the defence. The PPO stated that they had seen marks. When a subsequent medical examiner from the PPO office made his report, he concluded that there were no signs of torture. This was inconsistent and demonstrates the need for impartiality. Far from absolving the PPO, it merely confirmed the absence of neutrality and independence in investigating the allegations.

The defence demand the lifting of the reporting restriction. Wrongful publication was due to the PPO’s office. This demonstrates that there is no independence in relation to the PPO role.

In rebuttal, the PPO appeared to single out Mohammed Ahmed and stated that he was making false allegations against the PPO.

The defence concluded by stating that there were clear breaches of procedural law and inherent contradictions between the constitution and international standards.

The judge ruled as follows:

1. The lawyers to be given daily access if they so desire;

2. 22 copies to be made of the court file and distributed to the defence team;

3. No short adjournment to speak with clients;

The judge made no comment on the issue of reporting restrictions, nor in relation to the defence requests about the torture allegations.

The case was adjourned to 25 November 2010.

CONCLUSIONS

It is clear that a number of extremely serious allegations of mistreatment and torture have been made against the Bahraini authorities, in particular during the course of interrogations by the National Security Apparatus. The detainees further allege that this torture led to the signing of confessions, both at this early stage and in many cases at the PPO stage of investigation. If true, such coerced confessions represent not only a fundamental breach of Bahraini criminal and civil law, procedural law and constitutional rights, but also breach of Bahrain’s obligations under the ICCPR and CAT.

Under Article 15 of the CAT, the Kingdom of Bahrain is prohibited from admitting in proceedings any evidence or statements extracted through torture. A similar obligation exists in Article 13 of the Arab Charter on Human Rights, and Article 19 of the Bahrain Constitution. The alleged mistreatment clearly reaches the threshold required for torture as it includes allegations of hanging (falaka), beating of the soles of feet, sleep deprivation, and threats of sexual assault.

In the absence of a thorough and impartial investigation of the evidence, the confessions should not be admissible. Further, it is incumbent on the PPO and judge to thoroughly and impartially investigate allegations of torture. Under the Bahrain Constitution both the judiciary and the public prosecutor have a positive obligation to investigate such claims. It appears that in this case, such investigations have either not taken place or have been compromised by an apparent, or appearance of bias in terms of medical investigation. Given these circumstances, and in the absence of sufficient investigation, the defendants confessions ought not to form the basis of the evidence against them at trial. The court may wish either to exclude such evidence and proceed to trial without it, or more appropriately should stay the criminal proceedings pending the outcome of such investigation. Regardless of the outcome of those investigations, it would appear appropriate for the PPO to conduct their preliminary investigation of each defendant for a second time, in order to ensure fairness of the trial proceedings and approach to the building of the prosecution case.

The fact that confessions are relied upon in so many of these defendant’s cases is unusual to say the least. It is extremely disturbing that these confessions constitute the main direct evidence against the defendants and that the allegations of torture are consistent and unwavering. The following is an extract from the July 2010 Bar Human Rights Committee (BHRC) Report into the Adary Park and Ma’ameer cases[18]. It is clear from the 11 November trial observation report that many of the same serious concerns are again at issue:

“It is disappointing that the issues raised by our Bahrain trial observation report of 2009 are of concern in the present hearings: admissibility of coerced confessions and alleged torture/cruel, inhuman or degrading treatment.

The allegations of mistreatment and torture of detainees are not simply persistent; they are pervasive. In virtually all the cases of convictions in ‘special’ cases investigated by BHRC, those convictions were founded on disputed confessions, all alleged to have been made under duress and torture. It is not credible to blame this on defence lawyers or the political situation. Moreover, despite clear provisions for legal advice and representation in Bahraini law, these confessions invariably occurred prior to any access to lawyers. It may be that there are some detainees who have declined legal assistance, and there may have been difficulties with availability of lawyers on some occasions, but it offends common sense to suppose that all of these detainees were afforded their proper rights under the law. If they were not, this alone must support their contentions of mistreatment. BHRC was repeatedly told that detainees were taken before the Public Prosecutor in the early hours of the morning when access to defence lawyers would be most difficult. In the Ma’ameer case all 7 convicted men confessed to the killing and then tried to retract their admissions. Seven separate disputed confessions in a murder case is an extremely irregular phenomenon yet is a pattern in cases of this type in Bahrain.”[19]

Confessions were the sole or main evidence against the accused in both cases observed on the BHRC July 2010 visit. Unfortunately, again, confessions appear to be the sole or main evidence against the defendants in this “terrorist network” case. It is not sufficient or credible for the Kingdom of Bahrain to claim that defence lawyers are making false accusations relating to torture/ill-treatment. Given the widespread reports of such claims, Bahrain should investigate all cases of alleged torture and prosecute those responsible, in compliance with its obligations under the CAT and the Bahrain Constitution.

In relation to access, it is encouraging that the trial judge has ordered greater visitation rights but it appears that his orders have been delayed and obstructed in early stages of proceedings. This raises concerns about the role of the PPO in carrying out the judge’s orders. It is also disappointing that the judge did not rule publicly on whether the defendants could address the court as to the extent of their injuries, nor on whether independent medical examiners be permitted to assess their injuries.

Finally, it is of great concern that media reporting of the proceedings has gone unpunished by the court. Given the judge’s ruling, the publication of “terrorist” identities and defamatory claims against defence lawyers amounted not only to defamation but more importantly to a contempt of court. It is not clear whether such media reporting is connected to the authorities in any way, but it has created the appearance of bias in the media. It is extremely disturbing that defence lawyers should be targeted by such elements of the press and suggestions made about their own “terrorist” links. This presents a very dangerous situation to lawyers acting pro bono in defence of human rights activists and such media actions ought to be condemned and punished appropriately.