How Standards of Fair Trials are Sabotaged in Bahrain

Background:

On 1 May 2017, the representatives of 82 countries brought forth recommendations to the Kingdom of Bahrain in the Third Cycle of the Universal Periodic Review at the UN Human Rights Council. Many of the recommendations revolved around the balance and impartiality of the judiciary, and this came on the back of many harsh and improper sentences against human rights defenders and political activists. Many complained of torture and inhuman and degrading treatment, whereas nothing was done by the judicial authority to deal with this.

We have endeavoured to consider and analyse the various components of Bahrain’s judiciary and security, and to see whether their operations align with Bahrain’s Constitution and national laws, as well as consideration given to international agreements on human rights. This is listed in our recommendations at the end of the report.

This research seeks to shed light on the infringements on standards of fair trials in Bahrain.

Right to a Fair Trial:

The Bahrain Constitution provides provisions to control and organise the judiciary, with the first coming in Article 20 (“Criminal Trials”), which states, “[t]here shall be no crime and no punishment except under a law”, with Article 4 affirming, “[j]ustice is the basis of government”. These provisions create a requirement on the country to incorporate these principles in the governing system, and should all be guaranteed under the judiciary and trials. Further, the country should attempt to warrant that international agreements are reflected.

The spirit of the judiciary should stand by the principle that “no crime is to be stipulated unless there is a law accompanying it”, and is the foundation that Article 20 seeks to expound on. As such, a citizen should not be punished for a crime that the law does not state is a crime, or to introduce policy that cannot be regulated by law. A judge must, therefore, apply and have an understanding of principles, agreements, and laws to ensure proper protection for the civilian.

Revising Bahrain’s criminal laws, you will indeed find many articles, provisions and agreements with wide interpretations of their meaning. This has made it significantly easier for activists and dissidents to be targeted and punished, with anyone articulating their views in a manner that is compliant with democratic principles and values being sought out.

Example: – Article 122 in the Criminal Code states:

“He will be punished by death he who commits to antagonizing work with a foreign state against the state of Bahrain.” The use of this article has resulted in the sentencing of three Bahraini citizens from the Wefaq National Islamic Society, the Secretary-General, Sheikh Ali Salman, and two other members, after expressing peaceful political views regarding the Government of Bahrain. The Article itself is particularly vague in describing the parameters of the rule, endangering any active human rights defender or political dissident that airs his/her views.

Example: – Article 127 from the Criminal Code affirms:

“Anyone who leaks military secrets or intends to fail [the country’s] military or security, or obtains secrets and intends to leak them will be punished by death”. This article can be interpreted in a particularly wide way and can be applied to an array of information and individuals.  Any citizen that comments on any of Bahrain’s military or security activities publically, like on any social media platform, then he/she will in all likelihood fall foul of this article and can be punished by death for it. This is what has occurred to Al-Wefaq’s Secretary-General and its two members – as they have merely voiced a disagreeing opinion with GCC forces’ entering Bahrain.

Example: – Article 1 of the Laws relating to the Protection of Bahrain’s Society from Terrorist Activities, defines terrorism as follows:

“Terrorism: The use of force or the threat thereof, or any other unlawful means constituting a crime punishable by law, to which the offender resorts to an individual or collective criminal enterprise, for the purpose of disturbing public order, endangering the integrity and security of the Kingdom or jeopardizing national unity or the security of the international community; harming, intimidating and endangering their lives, freedoms or security, harming the environment, public health or national economy, utilities, installations or public property, obstructing their performance, preventing or obstructing public authorities or places of worship or institutes of science for the exercise of their actions”.

This, again, can be and has been construed widely, and places a person that exercises his right to expression to be seen as working against this definition – as he can fall under the meaning of “jeopardizing national unity”. This swings the law in a way where a person is assumed guilty and must prove his innocence if he is sentenced under this law.

Recommendations:

Repeal or amend laws that infringe on human rights, specifically those that clash with principles of Fair Trial.

Judiciary’s Independence to Ensure Justice

The judiciary in Bahrain suffers from the loss of the most important elements of the standards of independent judiciary. The Supreme Judicial Council is directly appointed by the King and he seats himself head of the judiciary. There are also no clear criteria for the process of appointment, with judges not being subject to any examination. In addition, the judges are mainly members of the ruling family themselves.

The Constitutions states under Article 33, “h. The King chairs the Higher Judicial Council. The King appoints judges by Royal Orders, as proposed by the Higher Judicial Council”, and under Article 69 of the Law of the Judiciary, “The Supreme Council of the Judiciary shall be constituted as follows: a) The President of the Court of Cassation b) The Attorney General. c) A minimum of five members of the current or former judiciary shall be appointed by Royal Order for a renewable period of three years. The King entrusts the President of the Court of Cassation with the Presidency of the Supreme Judicial Council.”

12- The King, according to the Constitution of the Kingdom of Bahrain, retains absolute powers, as he presides over all authorities, in contravention of the separation of powers required by the Constitution, which made the principle of separation of powers a constitutional text without effect. As such, the notion that the Bahraini people are the source of all powers is, in reality, just a dream for Bahrainis.

The absence of transparency in appointment to the judiciary and the lack of a mechanism to carry out checks and balance, has allowed the King to appoint judges from the ruling family and the families close to him. With members from the Sunni community having first dibs, as well as foreign Arabs (such as Egyptians) having the chance to be appointed in to the judiciary. With Shia Bahrainis facing slim chances of being appointed. The Public Prosecution mirrors this policy, where its members are appointed in identical fashion as that of the judiciary, and the considerations are the same (ruling family first, Sunni community members second, foreign Arabs third, and Shia Bahrainis last).

The military judiciary, after the amendment to Article 105 of the Constitution, has allowed the prosecution of civilians by military courts. The Military Justice Act has also given the authority for judges in such courts to be appointed by order of the King, after the nomination of the candidates. This judiciary is therefore no different from the civil judiciary in that it lacks any independence.

Recommendations:

  • Amend the mechanisms for the appointment of the Supreme Council of the Judiciary so as to allow the public to exercise its authority in the control of the judiciary.
  • Establish a clear and transparent mechanism to ensure that all sectors of society who meet the objective conditions of judicial practice and engage in judicial work are allowed to participate.
  • The establishment of legislative guarantees for the non-interference of any other powers in the work of the judiciary.
  • Abolish the constitutional and legal amendment allowing civilians to be tried by military courts.

Public Prosecution

The Public Prosecution is one of the branches of the judiciary, and is considered to be the custodian of the criminal casework and the initiator of investigations and indictments. This can be seen in the text of Article 5 of the Code of Criminal Procedure.

The Public Prosecution is presumed to preserve and protect the human dignity of the accused, to provide them with the necessary protection and to exercise the right of defense to refute the charge with the assistance of a lawyer.

The Constitution of the Kingdom of Bahrain states in Article 20 (c): “The accused is innocent until proven guilty”, which means that each accused shall be treated innocent and shall not be subjected to dehumanization, coercion and torture, but there are many instances where the defendants were tortured in the Public Prosecutor’s Office and that they were unable to avail themselves of legal assistance from their own lawyers. The Public Prosecution has on numerous occasions concealed information about the whereabouts of defendants and the type of charges attributed to them. This has happened to a number of Bahraini citizens, including to Sayed Fadel Sayed Abbas and Sayed Alawi Hussain, with both being subjected to enforced disappearance for more than 13 months.

Since the Public Prosecutor’s Office gives itself the power to detain defendants for precautionary purposes, we have observed that it has gone beyond such an authority and has used this authority in violation of the law. It regularly orders a jail sentence for more than six months of defendants, and investigates them for more than seven months. This is what happened in the cases of Sayed Alawi Hussein and Sayed Fadel Sayed Abbas.

The right to contact a lawyer

The majority of defendants in human rights and political cases are deprived of from contacting lawyers, both in police stations and at the public prosecution. Lawyers regularly apply to the security authorities and the public prosecution with official requests to see their clients but are usually always denied. It always becomes apparent after a case is prepared by the Public Prosecution against the defendants that a lawyer was required to attend with the client. This demonstrates the illegality of such a policy which has occurred time and again in numerous cases.

The Code of Criminal Procedure gave absolute power to the police and the Public Prosecution to allow lawyers to enter the interrogation chambers and to monitor the safety of the investigation proceedings against the accused. However, in contravention of the Constitution, we have observed that numerous defendants in criminal cases were not legally represented or were not allowed to have their lawyer present. We have observed cases where lawyers have been barred from being with their clients while they are being questioned at police stations, as well as defendants being interrogated at the Public Prosecution Office.

Confessions under duress

The Bahraini Constitution stipulates that any confession under duress, torture and sedition shall be null and void. There are dozens of detainees who report to the prosecution during their interrogation that their confessions in the Department of Criminal Investigation and Evidence were committed by coercion, torture, threats or inducement. In the event of their confession, they will be released, but the Public Prosecutor’s Office does not show any seriousness in the investigation of these allegations, and is often the basis for their conviction at court. There are some documented complaints from defendants who have informed the prosecutor that they were being tortured in the MIA building. Some complainants have repeatedly stated that their torture at the Public Prosecution Building occurred in the seventh floor in the middle of the night.

The prosecutors who investigate these cases often report that they sometimes refer the defendants’ allegations of torture to the Special Investigation Unit investigating allegations of torture and ill-treatment. This has rarely resulted in any convictions against any officers and has remained without tangible results. The majority of victims end up losing hope and confidence in these mechanisms and organisations.

Recommendations:

  • Amend the Code of Criminal Procedure to limit the powers of the prosecution to detain citizens.
  • Amend the Code of Criminal Procedure to ensure that defendants can communicate with their lawyers in all cases, and limit the authority of the judicial officers and prosecutors to prevent lawyers from entering interrogation rooms.
  • Enact legislation requiring the judiciary to show full seriousness in the investigation of any allegation of torture, or coercion to induce defendants to make his or her confessions. And to add such investigations to the main case against which the accused is charged.
  • Ensure mechanisms of supervision of the work of the Public Prosecutor’s Office and its investigating agents ensure that defendants are not subjected to any pressure or coercion while making their statements.

Judiciary and Trials

The judge is the natural guardian of rights and freedoms and the judiciary is the authority that protects public freedoms from any abuse. The judiciary is the reflection that reveals whether the state truly respects rights and freedoms.

We have identified and documented many cases of violations to defendants’ rights in the courts, which include denying them legal access to counsel at the preliminary stages of their criminal cases, as well as instances of denying them opportunities to discuss the substantive evidence before the court. The Public Prosecution has continuously relies on secret witnesses in criminal cases who do not attend trial sessions. This challenges the fairness of the criminal courts and defendants’ counsels cannot cross-examine or challenge these secret witnesses.

Furthermore, expeditiousness in dealing with cases in the criminal courts is not a principle that is upheld, with severe delays in the processing of criminal cases forcing many defendants to remain in custody for long periods of time. A recent example of this is the case of Sheikh Mohammed Saleh al-Qashmi, who was kept in detention for 12 months and then found innocent by the court.

Legal modification of criminal cases:

The legal adjustment or modification of the criminal cases are a particular issue, Bahrain’s security authorities commence an investigation, and usually alter a case to reflect the political interests of the authorities. We have found that most criminal cases that concern a political interest are expeditiously investigated by the Public Prosecution Department and an adverse judgment against the defendant is reached at the Court of Cassation. This has caught the attention of many legal professionals and is a matter of grave concern.

In Bahrain’s criminal law, legal modification/adaptation remains a jurisdiction of the criminal judge. However, we have consistently observed that criminal judges surrender any counter arguments and always choose to adopt the opinion of the security authorities. This has been illustrated with the case concerning “communications with Qatar”. The Secretary General of the Wefaq Party found himself in a position where his case’s accusations were repeatedly modified to correspond to social media materials to reach a position where a degamation charge can be sought despite the fact that all the materials and evidence based existed before the alleged communications took place.

Example: The case in which Sheikh Isa Ahmed Qassem and others were accused of laundering money despite only exercising a right to worship in the Shiite sect (the Jurisdiction to voluntarily tax your assets at 5% to help the poor and needy). According to the breadth of the legal profession and lawyers involved in the case, the whole case did not even address the violation in its proceedings, let alone the crime. The prosecution as such just adapted the work and filed accusations stating that it is not in accordance with the law. These Shia rites of worship have never been criminalised or an issue for contention until this case.

Right of the defendant to a defense:

The defense is an inherent right of every defendant. This right is provided for in the Constitution and the law. The judge, the prosecutor or any person who initiates the criminal case must allow the defendant an opportunity to defend himself or with the assistance of a lawyer.

We have found that in most criminal cases of a political or juridical nature, the court rejects the request to discuss secret witnesses. Many of the defendants have provided conclusive evidence of their innocence and have not been accepted by the court. Defendants often file a complaint with the criminal judge about the torture that accompanies the investigation, however, they are never properly followed up.

Recommendations:

– To abolish or amend laws that conflict with fundamental constitutional or legal rights.

– To train judges to the necessary level to operate in a way that can achieve justice and preserve the constitutional and human rights of defendants.

– To create mechanisms to supervise judges in a way that ensure all criminal proceedings are in accordance with the law, so as not to violate the defendant’s right to defense.

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