The Arabic Network Publishes The Trial Monitor Report

Cairo , December 23rd , 2010

The Arabic Network for Human Rights Information said that the trial of 25 Bahraini activists held today in the Third Major criminal Court was adjourned to Jan 6th , 2010. The court assigned 19 lawyers in the stead of the 21- lawyer defense team who withdrew upon the court refusal to investigate the defendants complaints of being tortured by Bahraini security. Activists stood before three court with torture scars on their bodies.

Today’s hearing was held with the attendance of another defense team. The team attempted to take the consent of the 23 defendants in custody , however the defendants insisted on their chosen defense team and refused to be represented by the new team. Following, 19 of 21 lawyers withdrew declaring they did not wish to represent the defendants. The court , presided by Ibrahim Sultan elZayed, ignored the will of defendants and lawyers and adjourned the case to Jan 6th , 2010.

The Arabic Network as an IFEX member , has sent monitors to attend the trial on 9/12/2010. The monitors report pointed out irregularities that indicate unfairness of the tribunal particularly wasting the right of the defendants to a fair and impartial investigation under court control to prove torture incidents thereby voiding all confessions extracted under physical or moral assault .

The Arabic Network said,” In such a significant case and with abundant indicators of torturing defendants , the court is urged to take all the possible measures that would end the doubts casted on the fairness of this tribunal. Not only activists need to trust the fairness of this trial , but lawyer local and international public opinion as well. This is a serious test to Bahrain’s credibility , judiciary integrity and the extent of respect shown to local and international laws and the international covenant for civil and political rights”.

Report On IFEX And ANHRI Hearing Observation: Human Rights Defenders In Bahrain

A further report of the hearing of:

• Ali Abdulemam (blogger and owner of bahrainonline.org);
• Dr. Abduljalil Al-Singace (spokesman and Director of the Human Rights Bureau of the Haq Movement for Civil Liberties and Democracy);
• Abdul-Ghani Khanjar (spokesperson for the Bahraini National Committee for Martyrs and Victims of Torture);
• Suhail Al-Shehabi (Committee of the Relatives of Detainees and the Committee of the
Unemployed);
• Ahmed Jawad Al-Fardan (Committee of the Relatives of Detainees in Karzakan);
• Ali Jawad Al-Fardan (Committee of the Relatives of Detainees in Karzakan);
• Salman Naji (Committee of the Unemployed);
• AbdulHadi Al-Saffar (Chairman of the Committee Against High Prices);
• Hassan Al-Haddad (member of the Committee of the Unemployed);
• Mr Jaffar Al-Hessabi (dual British-Bahraini national, independent human rights defender
supporting the rights of detainees in Bahrain);
• Dr Mohammed Saeed (board member of the Bahrain Centre for Human Rights);
• In the High Criminal Court, Manama, Bahrain – 9 December 2010

INTRODUCTION

The Arabic Network for Human Rights Information [ANHRI] is a central repository for human rights information and websites in Arabic throughout the Middle East and North Africa.
IFEX was created in 1992 in Montréal, Canada when a dozen leading free expression organisations came together to create a coordinated mechanism to rapidly expose free expression violations around the world. Today, IFEX numbers more than 80 independent organisations worldwide and is internationally recognised as a highly credible and effective global network.

With the support of IFEX, ANHRI commissioned Mr Matthew Moriarty, a UK based Pupil Barrister, along with Ahmed Mansoor Ali Alabd Alshehhi, a human rights activist and blogger based in the UAE, to attend the trial session at the High Criminal Court on 9 December 2010. The trial observation team also met with interested parties to discuss the ongoing proceedings.

Although only in Bahrain for a short period, the trial observation team were able to meet with trial defence lawyers, numerous family members of the defendants, officials from the UK, US and French Embassies and prominent human rights activists as part of the visit. However, although the Public Prosecutors Office [PPO] and Ministry of Justice [MoJ] were notified in advance of their attendance at the trial, they were unable to meet with any Bahraini officials to talk about the case or general situation.

This report is to be read in conjunction with previous reports on the above trial. In particular, it is intended to act as a ‘follow-up’ to the Front Line report of Ms Charlotte Peevers, from the trial session held on 11 November 2010[1], and borrows heavily from the background details and legal references contained within that report.

BAHRAINI LAW: GENERAL OBSERVATIONS

As noted in the Front Line report:

“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.[2] 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.”[3] 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[4]…

“…The Public Prosecution Office is charged with investigating and prosecuting all crimes, which would include torture.[5] The Public Prosecution Office can also demand that law enforcement agencies investigate and punish breaches of duty by their officers.[6] Civil servants, medical professionals, and other civilians are required to report crimes to the Public Prosecution Office or other relevant authorities.[7]”

These provisions remain of particular relevance to the trial, as the detainees have repeatedly informed the High Criminal Court judges that they have been tortured over a long period of time, without being given access to lawyers for a number of weeks. They have also requested through their lawyers that the allegations of torture be investigated before any evidence is heard in the trial. (See further details 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.
d. It is forbidden to harm an accused person physically or mentally.
e. Every person accused of an offence must have a lawyer to defend him with his consent.
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 also relevant to the trial, 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).

THE HEARING

Background

Following the commencement of this trial on 28 October 2010, before the High Criminal Court in Manama, there have been further sessions on 11 November 2010 and 25 November 2010. All of the defendants have maintained their innocence throughout this process and all but one have previously provided accounts of torture and ill-treatment in detention.

It has been a common feature of each of the previous sessions that the defence legal team has raised the following issues / concerns:

1. That the defence lawyers have not been given adequate access to their clients and did not have any access to them at all for weeks after their arrests;
2. that many of the defendants have raised serious allegations of torture and ill-treatment and that the individuals concerned should be given a sufficient opportunity to address the court to give evidence of their treatment;
3. that the defence team have not been given sufficient materials [eg. copies of the court file] or time to properly prepare for the trial proceedings;
4. that both the defendants and their lawyers have been defamed as terrorists in the media, despite the reporting restrictions imposed by the court;
5. that all of the defendants should have prompt access to an independent medical expert, in order to produce an objective report regarding any physical signs of torture and / or ill-treatment; and
6. that it is crucial that the trial proceedings be stayed until a full and impartial investigation regarding the allegations of torture and ill-treatment has been concluded.

The Public Prosecutor [PP] has resisted the calls for an independent medical expert and an investigation to be conducted in light of the torture allegations. He relies on the conclusions of the medical examiner appointed by the PPO and has suggested that it is for the court to decide whether the confessions were made following torture or ill-treatment, based on the limited information currently available.

During the third session, on 25 November 2010, one of the defendants made a further allegation of torture using electricity. The defence legal team also raised fresh concerns about the defendants treatment in custody, including allegations of limited access to basic sanitary facilities, forced shaving of the hair and beards of many of the detainees and prolonged periods of enforced ‘standing’ in one position. One of the defence lawyers also notes that the leading trial judge instructed the defence team to refer to their clients as ‘prisoners’, not ‘detainees’, following a request by the PP at the previous hearing.

It appears that the judge has not made any ruling in open court during any of the previous sessions in relation to the repeated defence requests for an investigation into the allegations of torture.

Trial Session – 9 December 2010

On the evening of 8 December 2010, prior to the fourth session of the trial, the observation team met with one of the main defence lawyers, Jalila Al-Sayed, who had been working on the case pro bono throughout the proceedings. Mrs. Al-Sayed confirmed that the trial has been taking place under an unusually accelerated time-frame and reiterated the concerns about the lack of opportunity to properly prepare the case and advise the defendants.

Mrs. Al-Sayed also confirmed that the court had not yet made a ruling in open court regarding the repeated requests for an independent investigation into the allegations of torture. However, she noted that following the session on 25 November 2010 the judges had retired to privately consider how to proceed with the case. The defence lawyers were subsequently provided with a written document, outlining the judge’s position.

The trial observation team were later able to obtain a copy of this written document, provided by another of the defence lawyers. Although not in possession of a full English translation of this document, it has been studied by the team and it appears to be an official court order which clearly refers to the trial in issue. For the purpose of this report, the key elements of the document are:

i. that it states that the defence request for greater access to the detainees has been respected;
ii. that it states that the detainees were moved to a new prison, in accordance with the court’s previous directions; and
iii. concerning the allegations of torture, it asserts that the PPO has passed files containing all the allegations and medical reports to ‘the responsible entities’. It goes on to state that the judges therefore intend to proceed with the trial on 9 December 2010 and listen to the prosecution witnesses in order to reach a decision in the case.

In relation to iii. it is unclear who or what the ‘responsible entities’ are supposed to be, but it is understood that this is a reference to the Ministry of Justice [MoJ], as the employers of those alleged to have carried out the torture. Therefore, it appears clear that the PPO is not taking any direct responsibility for investigating the allegations, as required under the Bahrain Constitution, but instead is suggesting that the MoJ can carry out some form of ‘in-house’ enquiry, absent any input from the detainees, their lawyers or independent experts.

Of even greater concern is the fact that the judges clearly did not intend to stay the trial pending the outcome of any MoJ enquiry, as they expressly stated their intention to proceed with the witnesses for the prosecution at the next session [ie. 9 December 2010]. In this regard, the document also thereby appears to bypass the court’s obligation to investigate under the Bahrain Constitution.

On the morning of the hearing, which was observed by representatives of the French, American and British Embassies as well as by the ANHRI team, the witnesses for the prosecution were present in the High Criminal Court and apparently ready to give evidence. These witnesses included some of the employees of the National Security Apparatus [NSA] who are specifically alleged to be involved or complicit in acts of torture and ill-treatment against the defendants, leaving the defence lawyers in no doubt that the court had every intention of admitting all of the evidence against those on trial, including the strongly disputed confession evidence.

In light of the court’s decision to proceed without an effective investigation, and the potentially devastating implications of this decision to the fairness of proceedings, the team of defence lawyers have therefore taken the major decision to withdraw their representation of the defendants, providing the judges in open court with a written document explaining the reasons for this decision in detail.

The trial observation team was also provided with a copy of this document, which details a number of legal and evidential issues. In summary, the defence lawyers submit that:

(1) the defendants have been interrogated in underground NSA facilities, not suitable for detention or imprisonment;
(2) the defendants have been subjected to ongoing physical and psychological torture, in manifest violation of the Bahrain Constitution, the Bahraini criminal law and the relevant international law, which have not been investigated;
(3) the manner of the proceedings against the detainees, from the initial arrests without warrant, to their incommunicado detention, to the manner of the PPO investigation under counter-terrorism laws (including the denial of proper access to their families and lawyers) has made it impossible for the defence team to represent their clients in a way that enables them to maintain their own professional obligations and commitment to national and international law;
(4) the defendants have been denied their right to the presumption of innocence as a result of the defamatory media campaign against them and their categorisation as a ‘terrorist organisation’;
(5) the High Criminal Court has failed to properly document the physical signs of torture shown to the judges by some of the defendants, or to enable the defendants and their lawyers to make full submissions during trial proceedings;

The defence team goes on to conclude that they are not able to do their work professionally and in accordance with proper legal standards under the conditions that have been imposed upon them by the nature of the proceedings. They state that in order to avoid being a merely cosmetic addition to the trial process, they find themselves obliged to step down and no longer continue defending the accused in this case.

Following the submission of the above document by the defence lawyers, they left the court room and the judges called a brief adjournment in order to consider how best to proceed with the session. After approximately 10 – 15 minutes the judges returned and informed the defendants that the trial was adjourned until 23 December 2010. They also asked each of the defendants whether they had another lawyer, to which all replied that they did not and some said that they wanted to keep their existing ones. The judge then stated that the defendants would be appointed with new lawyers in the intervening period, although it is unclear how these appointments will be made or how the new lawyers will be able to prepare properly for the next session.

After the hearing, the trial observation team also met with family members of many of the detainees. Detailed accounts were provided about their own experiences and contact with the defendants in recent weeks, including confirmation that many of them had been able to make pre-arranged weekly visits to their loved ones. However, these visits were consistently described as taking place under very oppressive conditions, for example:

(a) only immediate relatives are allowed to attend;
(b) the maximum time for a visit varies from 15 to 30 minutes;
(c) many family members said that they are forced to sit approximately 8 – 10 feet away from the detainees, who were closely attended by plainclothes guards / officers;
(d) between three and six prison guards / police officers are present throughout the visits and generally position themselves so that they can hear everything that is being said;
(e) some of the female family members said that they feel humiliated and intimidated by the manner in which they are treated, particularly by the female guards / officers.

Many of the family members said that they have serious concerns that the detainees are only able to talk about mundane topics and appear to be extremely wary of discussing their treatment in detention or the trial. They believe that the presence of the police / guards is threatening and intimidating. It is also noted that none of the family members appear able to communicate with the detainees by any other means, as there is no access to a telephone in the prison and they do not appear to be able to write to their relatives from detention.

In spite of the obvious difficulties faced by the family members in discussing the treatment that the detainees are currently experiencing in custody, some of those who had attended the hearing on 9 December 2010 said that their relatives had made it clear that they continue to be seriously ill-treated and harassed. Others who had visited the prison said that their relatives had tried to communicate that they were being deprived of sleep and were not eating (although it was suggested that at least one of them is on a self-imposed hunger-strike). All of the family members who spoke to the trial observation team said that the detainees have been forcibly shaved by the prison guards, some describing it as being held down on a chair and ‘shorn like sheep’. Many reiterated reports that the detainees are frequently made to stand for long periods, when a bell or alarm sounds within the prison, and some also provided consistent accounts that detainees have reported being blindfolded and humiliated when they use the toilet, for example by being forced to sing songs or being verbally abused by the guards.

A number of the family members volunteered their view that there has been a recent general escalation in the detention and ill-treatment of perceived opponents of the Bahraini authorities, with numerous allegations of confessions being forced under torture being raised in criminal trials, as well as access to lawyers being routinely denied in the initial stages of criminal investigations. This view was also shared by at least two of the defence lawyers, Mrs. Al-Sayed and Mr. Al-Tajer. It was further supported by the accounts of the parents of two Shia teenagers who are stated to have been arbitrarily arrested along with many other young men in their area and remain in detention, where they are said to have been threatened with extreme sexual violence.

CONCLUSIONS

• In addition to the ongoing concerns already raised in previous reports, the withdrawal of the defence lawyers presents the accused with significant new concerns. Any new lawyers appointed by the MoJ will face many of the same problems experienced by the previous team (including the admission of the confession evidence), and will also suffer from the severe lack of time and resources available to them to prepare for future sessions, with no legal aid being made available even for the most basic or fundamental work on the case.

• Further, even if suitable and willing independent lawyers are appointed, Mr. Al-Tajer has explained that there are underlying difficulties with the nature of the proceedings, including the fact that some members of the previous defence team found themselves in the professionally impossible position of trying to provide representation to different clients who had implicated each other in the disputed confessions.

• It is noted that some of the most severe forms of torture alleged during the first session of the trial appear to have abated following the submissions made on behalf of the detainees during the second and third sessions. However, it is of grave concern that numerous family members who have visited the detainees in custody have provided consistent and credible accounts of ongoing forms of inhuman and degrading treatment against the defendants, including:

i. forced ‘standing’ for long periods of time;
ii. various forms of humiliation before and during visits to the toilet;
iii. forced shaving of the head and beard, contrary to the detainees personal and religious beliefs;
iv. sleep deprivation.

• The Bahraini authorities have undertaken not to subject detainees or other persons to torture or other forms ill-treatment, under both international conventions and the Bahraini constitution [see above]. It is therefore reiterated that, in the absence of a thorough and impartial investigation of the evidence, the alleged confessions should not be admissible and the witness evidence of those alleged to have carried out the torture should not be heard.

• Further, to ensure the fairness of the trial and compliance with the national Constitution, the proceedings must be put on hold until such time as the court can be properly satisfied that the PPO has thoroughly and impartially investigated allegations of torture. As noted in the Front Line report of Ms. Peevers, “[r]egardless 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 [before any further trial], in order to ensure fairness of the trial proceedings and approach to the building of the prosecution case.”

• In light of the seriousness of the allegations of torture, if the current trial does continue without a genuinely impartial investigation, the court can only objectively be said to be adhering to the most minimal requirements of due process if the defendant’s alleged confessions and the witness evidence of their alleged torturers are totally excluded from the evidence against them at trial.

• In light of the withdrawal of the defence team at the hearing on 9 December 2010, the absence of legal aid or other funding, and the previous media attacks on lawyers willing to act pro bono for the detainees, coupled with the practical difficulties with representing them (noted above), it is hard to see how they can possibly receive a fair trial if the case proceeds as it has done to date. Therefore, the court is urged to reconsider the weight of the written submissions provided by the defence team regarding the allegations of torture, the inadmissibility of the confessions and the impossibility of providing adequate representation without a full investigation of the matters raised.

• ANHRI urges officials from the French, UK and US Embassies to continue to observe the trial sessions and to take an active interest in the approach of the PPO and High Criminal Court in light of recent developments. In this regard, it is noted that senior US figures have recently reiterated the importance of adherence to basic principles of due process to the Bahraini authorities. It is further noted that prior to the fourth session Mr Jaffar Al-Hessabi (a dual British-Bahraini national) had been visited in custody only once by UK Embassy officials. However, it is understood that a further visit had been applied for and it is hoped that prison officials will make every effort to accommodate regular private visits by all interested parties, including family members.
________________________________________
[1] Go to http://www.frontlinedefenders.org/node/13904 for details of the report
[2] Bahrain Penal Code, arts. 208, 232.
[3] Bahrain Code of Criminal Procedure, art. 61.
[4] Ibid., arts. 133-35.
[5] Ibid., arts. 5, 8 and 81.
[6] Ibid., art. 44.
[7] Ibid., arts. 47-48

Original report posted on
anhri.net (Blocked in Bahrain)