Summary of the Opinions adopted by the Working Group on Arbitrary Detention at its seventy-fourth session (30 November – 4 December 2015)
Opinion No. 51/2015
The WGAD has provided the following disposition:
“The WGAD recommends the Government of the United Arab Emirates to provide with an adequate and full reparations to Messrs. Alaradi, Ahmed Eldarrat, Kamal Eldarrat, Al Hashmi and Nasif, starting with their immediate release subject to guarantees to appear for trial or alternatively his trial conducted as expeditiously as possible in full respect of their due process of law guarantees as enshrined in applicable international law.”
The United Nations Working Group on Arbitrary Detention (WGAD) is a body within the U.N. Human Rights Council that receives communications and issues opinions regarding the detention of individuals throughout the world.
The WGAD has investigated the specific case of Canadian citizen Salim Alaradi, and US citizens Kamal and Mohamed ElDarrat and evaluated whether they are consistent with the relevant international legal norms regarding detention, including those articulated in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles). Based on the investigation it has formulated “deliberations” on the detention.
The WGAD has adopted an opinion on this matter at its 74th session on November 30th 2015 (Opinion No.51/2015). The following is a summary of the opinion:
- Based on information submitted by the source representing families of the detainees and subsequent information submitted by the UAE government, the WGAD has concluded that it is clearly impossible to invoke any legal basis justifying the deprivation of liberty of the victims (category I of the WGAD’s categories of arbitrary detention).
- The international norms relating to a fair trial have been violated to such gravity that the deprivation of liberty is conclusively arbitrary (category III of the WGAD’s categories of arbitrary detention).
- The victims were arrested without a court warrant and detained outside of the existing framework of UAE Law. This clearly violates the principle that all forms of detention or imprisonment must be ordered by, or subject to, the effective control of a judicial authority.
- In general the burden rests with the Government to produce the necessary proof that its actions are not in violation of international law and standards. The UAE in its response to the WGAD did not present sufficient evidence to sustain its views.
- The WGAD received convincing information that Salim Alaradi, Mohamed Eldarrat, and Kamal Eldarrat were arrested in the absence of an arrest warrant issued by the court; the reasons of their arrest were neither communicated to them nor to the members of their families. All of them were deprived of the right to challenge their arrest and detention before the judicial authorities and subjected to enforced disappearance, secret and incommunicado detention. All of them have been denied the right to contact their families and denied the right to receive regular visits. They have been obstructed in their right to access to legal counsel. The prosecution has never provided to the victims and their families to have an access to the case file, no charges have been brought to date and the families do not know if and when the hearing will take place. They were denied or obstructed in the exercise of their right to be assisted by their respective consulates.
- Also, the WGAD received reliable information on the acts of torture infringed to the victims, and did not receive information on criminal investigations against the presumed perpetrators of torture and other cruel or inhumane treatment.
- The WGAD has referred the allegations of torture to the Special Rapporteur on torture for appropriate action. The SR on torture has already begun an investigation and in late 2015 requested a state visit to the UAE.
- The WGAD finds that that Salim Alaradi, Mohamed Eldarrat, and Kamal Eldarrat were victims by UAE of serious violations of the international norms relating to the right to a fair trial, as enshrined in international law, especially in Articles 8, 9, 10 and 11 of the UDHR.
- The gravity of such violations qualifies them for category I and III of the WGAD’s deﬁned categories of arbitrary detention.