OPINION No. 15/2000 (BAHRAIN)
Communication addressed to the Government on 20 July 1999
Concerning Mohamed Ali Ahmed Al-Ekry
The State is not a party to the International Covenant on Civil and Political
Rights
1. The Working Group on Arbitrary Detention was established by resolution 1991/42
of the Commission on Human Rights. The mandate of the Working Group was clarified
and extended by resolution 1997/50 and re-confirmed by resolution 2000/36. Acting
in accordance with its methods of work, the Working Group forwarded to the Government
the above-mentioned
communication.
2. The Working Group conveys its appreciation to the Government for having forwarded
the requisite information in good time.
3. The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(i) When it manifestly cannot be justified on any legal basis (such as continued
detention after the sentence has been served or despite an applicable amnesty
act) (category I);
(ii) When the deprivation of liberty is the result of a judgement or sentence
for the exercise of the rights and freedoms proclaimed in articles 7, 13, 14,
18, 19, 20 and 21 of the Universal Declaration of Human Rights and also, in
respect of States parties, in articles 12, 18, 19, 21, 22, 25, 26 and 27 of
the International Covenant on Civil and Political Rights (category II);
(iii) When the complete or partial non-observance of the international standards
relating to a fair trial set forth in the Universal Declaration of Human Rights
and in the relevant international instruments accepted by the States concerned
is of such gravity as to confer on the deprivation of liberty, of whatever kind,
an arbitrary character (category III).
4. In the light of the allegations made, the Working Group welcomes the cooperation
of the Government. The Working Group transmitted the reply provided by the Government
to the source and received its comments. The Working Group believes that it
is in a position to render an opinion on the facts and circumstances of the
cases, in the context of the allegations made and
the response of the Government thereto.
5. According to the information submitted to the Working Group, Mohammed Ali
Ahmed Al-Ekry, a 21-year-old Bahraini university student, was apprehended without
a warrant and is being detained without charges at the Al-Kala Fort Prison.
6. On 15 February 1998, at 2.15 a.m., anti-riot and plainclothes policemen led
by Col. Khaled Al-Wazam allegedly broke into Mohammed-Ali Ahmed Al-Ekry’s
house and intimidated his family, before arresting him without a warrant. Although
the authorities had not issued formal charges against Mr. Al-Ekry, it is said
that the State Intelligence Service (SIS) had ordered the operation because
he had participated in peaceful opposition activities against the Government.
Since his arrest, Mr. Al-Ekry has been detained under the custody of the Ministry
of the Interior. The State Security Law of 1974 entitles the Minister of the
Interior to detain anyone whom he deems to threaten State security for up to
three years without a trial.
7. In its detailed observations, which the Working Group appreciates, the Government
considers that the information transmitted to the Group must be viewed against
the background of the situation in Bahrain, which has for the past three years
been facing a destabilization campaign by foreign-backed extremists responsible
for inciting violence and intimidation within the community. Such allegations
are the recognizable product of such extremists’ propaganda; its source
is individuals and groups outside Bahrain which have no direct knowledge of
the situation and no genuine interest in human rights in Bahrain.
8. According to the information provided by the Government, Mohamed Ali Ahmed
Al-Ekry was lawfully arrested on 18 February 1998 at his home by the regular
police under an arrest and detention order issued by the Minister of the Interior
pursuant to section 1 of the 1974 State Security Law, for violence-related activities
which contravene specific articles of the 1976 Penal Code.
9. The Government underlines that no evidence or complaint has been received
in Bahrain that the police broke into the subject’s house, which would
in any case have been unlawful.
10. The Government adds two further clarifications:
(a) Mohamed Ali Ahmed Al-Ekry has not been arrested or detained for any opinion
or expression, nor for any peaceful activity, but for violence-related activities
which are not only breaches of public order but are also aimed at the destruction
of the rights and freedoms of others;
(b) He is not held in the Fort Prison (Al-Kala). While it is not government
policy to publicly disclose the exact whereabouts of detainees, his whereabouts
are well known to his family and friends who regularly visit him and have good
contact with the custodial authorities. He is held in a regular place of detention
and accorded all his rights of visitation, representation, welfare and medical
care, strictly in accordance with the 1964 Prisons Law and regulations and international
standards.
11. More generally, the Government submits that:
(a) On the one hand, all those who have been detained in connection with the
civil unrest since 1994 have, without exception, been detained for their activities
either as perpetrators or advocates of violence pursuant to specific articles
of the 1976 Penal Code, e.g. articles 178-184 (rioting), 277-278 (arson), 279-281
(use of explosives), 219-222 and 333-343 (assault, murder and use of weapons),
156-157, 160 and 168-170 (incitement/conspiracy/publication to commit violations),
etc. The police have the lawful authority to detain a suspect for investigation
for up to 48 hours after arrest under article 25 of the 1966 Code of Criminal
Procedure. Continued detention beyond 48 hours is by order of the court under
article 79 of the Code of Criminal Procedure or by Order of the Minister of
the Interior under article 1 of the 1974 State Security Law. All issues of detention,
trial and release are determined by due process of law in accordance with the
detailed procedures and requirements set out in the 1966 Code of Criminal Procedure,
the 1974 State Security Law, the 1976 State Security Court Law and the 1976
Penal Code;
(b) On the other hand, whilst persons arrested by Order of the Minister of the
Interior, pursuant to his authority under the 1974 State Security Law, may be
detained for a period not exceeding three years, anyone so detained has, per
section 1 of the 1974 Law, the right of appeal to the High Court of Appeal three
months after arrest and thereafter every six months. If the individual does
not exercise this right of appeal, the Prosecuting Authority shall do so instead
in order to continue the validity for the arrest order (sect. 4). Mohamed Ali
Ahmed Al-Ekry has not been denied his right to have his detention periodically
judicially reviewed.
12. Further, rights of representation at judicial review of such detention are
comprehensively protected by the law and the appellant and his representative
are fully entitled to appear before the appeal hearing. Appellants have the
right to appoint lawyers to represent them at any time after their arrest but
in practice often wait until they get to the court, which is then bound by law
to appoint a defence lawyer for them free of charge.
13. The Government concludes that such detentions are not arbitrary but strictly
according to, and in enforcement of the law, in conformity with articles 9,
10, 19, 29 and 30 of the Universal Declaration of Human Rights and in compliance
with articles 5, 7, 9, 10, 19 and 20 of the International Covenant on Civil
and Political Rights (although Bahrain is not a party thereto).
14. In view of the allegations made by the source and the reply of the Government,
the Working Group finds as follows:
(a) Generally speaking, first of all, the ordinary law procedure as described
by the Government (detention by the police for investigation for a period of
up to 48 hours under article 25 of the 1996 Code of Criminal Procedure, that
period being renewable for a further 48 hours by decision of a court under article
79 of the Code) appears to be compatible with the guarantees set forth in article
9 of the Universal Declaration of Human Rights, which states that no one shall
be subjected to arbitrary arrest or detention, and, more especially, with the
guarantees provided for by article 9, paragraph 3, of the International Covenant
on Civil and Political Rights, as invoked by the Government in its reply, which
requires the person arrested to be brought promptly before a judge;
(b) However, the Working Group considers that the provision under the State
Security Law allowing the Minister of the Interior to order the arrest of a
person without a court warrant and to keep him in detention without trial for
as much as three years is incompatible with article 9, paragraph 3, of the International
Covenant on Civil and Political Rights, which states that anyone arrested shall
be “brought promptly before a judge or other officer authorized by law
to exercise judicial power”, which plainly cannot apply to a Minister
of the Interior;
(c) The Working Group further notes that the remedy enabling a detention order
by the Minister to be challenged before the High Court of Appeal is available
only after a period of three months following arrest, whereas article 9, paragraph
4, of the Covenant states that “anyone who is deprived of his liberty
by arrest or detention shall be entitled to take proceedings before a court,
in order that that court may decide without delay on the lawfulness of his detention
and order his release if the detention is not lawful”.
15. The Working Group takes note of the fact - which is not contested - that
Mohamed Ali Ahmed Al-Ekry was arrested and placed in detention by order of the
Minister of the Interior under the State Security Law. The Government has, moreover,
failed to specify the violence-related activities of which Mr. Al-Ekry is allegedly
guilty, and does not indicate where he is currently being held. The Working
Group considers that such a custodial measure is not compatible with articles
9 and 10 of the Universal Declaration of Human Rights or with article 9 of the
International Covenant on Civil and Political Rights, as referred to by the
Government in its reply, inasmuch as detaining an individual by decision of
a minister for a period of up to three years, although consistent with national
law, is not in conformity with the above-mentioned international standards.
16. In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mohamed Ali Ahmed Al-Ekry is arbitrary, being
in contravention of articles 9 and 10 of the Universal Declaration of Human
Rights and
article 9 of the International Covenant on Civil and Political Rights, and falls
within category III of the categories applicable to the consideration of the
cases submitted to the Working Group.
17. Consequent upon the opinion rendered, the Working Group requests the Government
to take the necessary steps to remedy the situation and to bring it into conformity
with the standards and principles set forth in the Universal Declaration of
Human Rights, and to take the adequate initiatives with a view to becoming a
State party to the International Covenant on Civil and
Political Rights.
Adopted on 18 May 2000
E/CN.4/2001/14/Add.1