TRIAL OBSERVATION REPORT: Case Number 17/2013 “THE UNITED ARAB EMIRATES 94” / March 2013
1. The first two hearings in the trial of 94 intellectuals, activists, and human rights defenders, took place before the Special Security Court within the Federal Supreme Court in Abu Dhabi, United Arab Emirates (UAE) on 4 and 11 March 2013. A coalition of four human rights organisations - the Gulf Centre for Human Rights (GCHR), the International Federation for Human Rights (FIDH), the Arab Network for Human Rights Information (ANHRI) and the Cairo Institute for Human Rights Studies (CIHRS) - appointed observer Melanie Gingell, a barrister of England and Wales to monitor and report on the hearings. The coalition's mission was supported by association with Al Karama, the International Commission of Jurists, a delegation of Turkish lawyers, and the British-based Emirates Centre for Human Rights who were also tasked with observing the trial.
2. On 27 January 2013, the 94 defendants were charged with founding, organising and administering an organisation aimed at overthrowing the government, contrary to article 180 of the penal code. The offence carries a maximum sentence of 15-years' imprisonment. There is no right of appeal in matters heard in the Special Federal Security Court. The group of defendants is made up of 94 Emiratis. Thirteen of these defendants are women who are the only ones to have been granted bail. The arrests took place over the twelve months preceding the trial. Some of the 94 have not been arrested and have been described as absconders. Ten of those in custody have reportedly been held in secret detention centres and/or in solitary confinement and have suffered torture and inhumane treatment.
3. The Supreme Court security service prevented international legal observers from entering the court to monitor the proceedings. Members of the international media were also denied entry. Thus there was a breach of the obligation to hold the trial in public and for justice to be seen to be carried out.
4. The authorities presented the observers with procedures in order to gain access to the hearings, which they claimed were open to the public. All these procedures were complied with, which included providing copies of passports, passport photographs and documentation in Arabic - including requests to the presiding judge and the observers’ mandates in the first instance to the security services at the Supreme Court, and then to the Ministry of Foreign Affairs.
5. The hearing was held under conditions of the highest security. All routes leading to the court were subject to police roadblocks. Observers who tried to approach the area on foot were stopped and their passports examined before being ejected from the area. There were signs that the hotel rooms of the observers were searched while the observers were following the required procedures.
6. Relatives of the defendants and local press were however allowed access to the court, albeit under strict conditions. The following report is therefore based on interviews with those relatives, and reports in the local press. Despite many requests made by representatives of the coalition to meet with a member of the prosecution team and the judges, and to visit the detention centres, these requests were all either denied or ignored. No reasons were given.
7. The coalition welcomes the fact that some aspects of the right to fair trial were respected. The defendants were present during the hearings and were represented by counsel. The defendants were allowed to intervene in the proceedings both in person and through their counsel.
8. The coalition believes however that other aspects of the right to a fair trial have been breached. In so far as the principle of the equality of arms between the prosecution and the defence, the independence and impartiality of the tribunal and the presumption of innocence are concerned, there are serious defects. In summary, the proximity of the prosecution and judge, the failure to provide the defence with the prosecution's evidence in a timely manner, and the disparity of approach by the tribunal between the defence and the prosecution lawyers are all factors which lead us to conclude that the defendants have not been afforded a fair trial.
9. The coalition believes that there has been a serious breach of the obligation to prevent torture of the defendants whilst in pre-trial detention. We further believe that the court, having heard the allegations of torture, failed to order any investigation of the allegations or to address them in any way. The central piece of evidence against the defendants is the confession of one of them, Ahmed Bin Ghaith Al-Suwaidi. This defendant has spent the last year in solitary confinement at a secret location. The coalition believes that the confession was extracted from him by torture and should therefore be disregarded by the Court as evidence, according to international standards and in particular the UN Convention Against Torture. His appearance at court was distressing and shocking for his relatives: he could hardly stand and he had lost a great deal of weight. According to his relatives, “He seemed like a pale shadow of his former self.” Al-Suwaidi made an emotional plea to the judge calling for protection for himself and his family. He further said that security services had threatened to murder him and his family if he did not change his plea to guilty.
10. The coalition expresses deep concern that many of the defendants in custody have been detained in appalling circumstances at secret locations without access to lawyers or family for long periods of time. It is alleged that the defendants have suffered variously beatings, the lengthy holding of stress positions, electric shocks, and deprivation of sleep. The allegations include that they have in some cases been humiliated by the withholding of adequate food, clothing and warmth and have suffered sexual abuse.
11. The trial is not proceeding on consecutive days and is being heard at a rate of one or two days per week. It is not known how many further hearings will take place. The coalition is concerned that this protracted approach may give rise to a violation of the right to trial within a reasonable time or the right to be released.
12. The coalition calls upon the judge to mount an immediate investigation into the allegations of torture, and if the allegations are found to be true, to punish the perpetrators accordingly.
13. The report concludes that:
- The judge has failed in his duty to investigate credible allegations of torture of the defendants whilst in pre-trial detention.
- The trial is proceeding in violation of internationally recognised standards of a fair trial.
14. The primary charge against the 94 defendants of founding and administrating an institution aimed at overthrowing the government is pursuant to Article 180 of the federal penal code. It provides that:
A punishment of temporary imprisonment shall be inflicted on any person who institutes, founds, organises or administers a society, corporation, association, organisation, group, gang, or a subsidiary thereof of whatever name, aiming at overthrowing, seizing, or opposing the basic principles supporting the government regime in the State, or preventing any institution of the state or any public authority from exercising its functions, or attempting at the citizens' personal or other freedom or public rights guaranteed by the constitution or law, or harming the national unity or social peace. A punishment of imprisonment for a period not exceeding ten years shall be inflicted on any person who joins a society, corporation, association or the organisations stated in the first paragraph of this article or cooperates therewith or participates therein in any manner or provides them with any financial or material aid whilst being aware of their purposes.
15. The prosecution is based on the allegation that the defendants are members of an organisation called Al-Islah (Reform). The prosecution alleges that this organisation has a subversive agenda and has links to the Muslim Brotherhood in Egypt. The central piece of evidence in the case is a confession by Ahmed Bin Ghaith Al-Suwaidi and other defendants and interrogations of the defendants whilst they have been held in solitary confinement with serious allegations of being subjected to torture and other forms of ill-treatment.
16. The defence's case is that the defendants, who are professional people - some from the highest echelons of Emirati society, have an interest in political reform. Some of them are members of Al-Islah, which has existed peacefully and is legally registered in the UAE since the 1970s. It was set up with government approval with the objective of advancing social and cultural education. They have called for more democracy in the political system in line with the Emirati constitution which sets out a desire to prepare “…the people of the Union at the same time for a dignified and free constitutional life, and progressing by steps towards a comprehensive, representative, democratic regime in an Islamic and Arab society free from fear and anxiety.”
17. The defence's case is that nothing has been done beyond calling for peaceful progress in democratic reform.
18. Many human rights groups have come together to express concern about the accelerating regression in relation to human rights standards in the country generally. The European Union in its resolution adopted on 26 October 2012  expressed concern regarding the crackdown against democracy activists and rights defenders in the UAE and called for the release of all prisoners of conscience. This trial follows on from the earlier “UAE 5” trial of 2011 in which five defendants were convicted of insulting the country’s senior officials by signing an online petition calling for democratic reform.
19. In 2011, four United Nations Special Rapporteurs sent communications concerning the arbitrary detention of human rights defenders in the UAE. In 2012, the Special Rapporteur on the Situation of Human Rights Defenders expressed serious concern about violations of defenders' right to freedom of expression and the arbitrary arrests of rights activists in response to their legitimate human rights work in the UAE.
20. On 17July 2012, the United Nations High Commissioner for Human Rights expressed concern about “what appeared to be an accelerating crackdown on human rights defenders through harassments, denial of travel, termination of work contracts, arrests, denaturalization and expulsion from the country.”  It was noted that “apparently national security was increasingly being used as a pretext to clamp down on peaceful activism, and to stifle calls for constitutional reform and calls to address human rights issues such as statelessness. A number of activists openly critical of the Government had been arbitrarily deprived of their Emirati nationality.” The High Commissioner called on the government to guarantee that human rights defenders are able to carry out their work without fear of reprisals, and urged the release of those detained for the peaceful exercise of their fundamental human rights.
LEGAL FRAMEWORK IN RELATION TO TORTURE
21. The UAE ratified the United Nations Convention Against Torture and Other Cruel or Degrading Treatment or Punishment in July 2012.
Article 2 guarantees the right to be free of torture: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Article 12 provides that: “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”
Article 15 provides that: “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
22. There is a constitutional guarantee against torture in the UAE Constitution in Article 26: “... No person shall be subjected to torture or to degrading treatment.”
VIOLATION OF THE RIGHT TO BE FREE FROM TORTURE
23. At the hearings on 4 and 11 March, many defendants made allegations that state officials had subjected them to torture and inhumane treatment while in pre-trial detention. Defendants made the following allegations:
a) They were kept in small cells measuring approximately 2.5 by 3 meters.
b) The air conditioning was turned up and they were given only a towel to wear.
c) The lights were left on all night.
d) There were insufficient toilet facilities resulting on occasion to them soiling in the cells, which were not cleaned.
e) They were kept in solitary confinement.
f) They were severely beaten, their fingernails were extracted, and they were blindfolded and interrogated over many hours throughout the day and night.
24. Ahmed Bin Ghaith Al-Suwaidi said he and his family had been threatened with death if he pleaded not guilty.
25. The judge declined to order an investigation into the allegations and he is continuing with a trial in which the central piece of evidence - the confession by Ahmed Al Suwaidi – is tainted by the allegation that it was obtained by torture. He did however order the defendants be moved to official prison accommodation and that five defendants be transferred to hospital to be examined by specialists.
26. It has become known through defendants’ families that the secretary to the Presiding Judge is Hamad Al-Mazrouie, the former registrar of the state security prosecution team, and that this secretary has been seen by the defendants visiting the secret detention centres. He may therefore be complicit in the ill treatment and torture of the defendants. At the very least he would have been aware of the conditions in which they are being kept. This is a matter of serious concern, which potentially compromises the independence of the tribunal at the most fundamental level.
27. Family members who have had contact with the defendants have expanded on the court statements, claiming that the abuse is more extensive and includes the use of electric shocks and sexual abuse including putting women in the cells in order to cause sexual humiliation to the male defendants.
28. The coalition is concerned that no further action will be taken by the judge to investigate these serious allegations. This amounts to a breach of his duties under both international and domestic law. At the very least, this failure to investigate, and the visits to the secret detention centres by the judge's secretary, leads to the perception of complicity between the tribunal and the security services.
LEGAL FRAMEWORK IN RELATION TO THE RIGHT TO A FAIR TRIAL
29. There are constitutional fair trial guarantees under the terms of Article 28 of the UAE constitution that: “an accused shall be presumed innocent until proven guilty in a legal and fair trial.”
30. The Arab Charter is the binding regional instrument ratified by the UAE. In addition there are relevant persuasive standards contained in the Universal Declaration of Human Rights (1948), the United Nations Basic Principles on the Independence of the Judiciary (1980) and the United Nations Basic Principles on the Role of Lawyers (1990).
Article 13 (1) of the Arab Charter guarantees the right to a fair trial in criminal proceedings “before a competent, independent and impartial court that has been constituted by law to hear any criminal charge against him…”
Article 13 (2) guarantees that trials “shall be public, except in exceptional cases that may be warranted by the interests of justice in a society that respects human freedoms and rights.”
Article 14 (1) provides “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest, search or detention without a legal warrant.”
Article 14 (5) provides that : “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”
Article 16 sets out the presumption of innocence and the following minimum guarantees including equality of arms, adequate time to prepare a defence, to be able to communicate with his/her family, the right to appeal and to security of person and privacy:
1. The right to be informed promptly, in detail and in a language which he understands, of the charges against him.
2. The right to have adequate time and facilities for the preparation of his defense and to be allowed to communicate with his family.
3. The right to be tried in his presence before an ordinary court and to defend himself in person or through a lawyer of his own choosing with whom he can communicate freely and confidentially.
4. The right to the free assistance of a lawyer who will defend him if he cannot defend himself or if the interests of justice so require, and the right to the free assistance of an interpreter if he cannot understand or does not speak the language used in court.
5. The right to examine or have his lawyer examine the prosecution witnesses and to on defense according to the conditions applied to the prosecution witnesses.
6. The right not to be compelled to testify against himself or to confess guilt.
7. The right, if convicted of the crime, to file an appeal in accordance with the law before a higher tribunal.
8. The right to respect for his security of person and his privacy in all circumstances.
31. The Universal Declaration of Human Rights Article 3 guarantees “the right to life, liberty and security of person.”
32. There is a series of cases before the European Court of Human Rights on the right to trial within a reasonable time. While not binding, these cases provide persuasive authorities as to the interpretation of the right to trial within a reasonable time.
VIOLATION OF THE RIGHT TO A FAIR TRIAL
I. Independence and impartiality of the tribunal.
33. The trial observation coalition is deeply concerned at allegations that the tribunal, made up of Presiding Judge Falah Al-Hajiri, Judge Mohamed Ahmed Abdulqader and Judge Adbulrassol Tantawy, may not be able to act independently of the executive and that they are not free to administer justice in the proceedings. For example, according to family members, when the judge made an order on 4 March that the defendants should be moved from the secret detention facilities to public prisons, this order was ignored by the state security forces for four days and at the time of this report's release, it has still not been complied with in relation to Ahmed Bin Ghaith Al-Suwaidi.
34. In July 2012, when relatives of the accused were brought to court for orders extending their detention, the judge met a relative in the corridor of the court asked him why he was there. He explained that he needed to see the physical condition of his family member and explained that no one had been able to see him for three months. The judge then made an order that the defendant be allowed to see his brother privately while at court. The security services promptly overruled the order. Eventually a compromise was reached in which he was allowed to see his brother in the presence of security officers.
35. The prosecution team sits to the right of the judges, closer to them than the defence, who sit at tables facing the judges. When the court rises, the judges and the prosecution retire to the same room. This gives rise to the fear that there is not equality of treatment as between the defence and the prosecution and that the tribunal is not impartial and independent of the state security prosecution. The prosecutor clearly has the opportunity to discuss the case outside the courtroom to the total exclusion of the defence lawyers. This degree of exclusive access is not compatible with the requirement of the tribunal being impartial between the parties.
II. Access to prosecution evidence and right to submit defence documents
36. The defence team was not provided with the indictment containing the charges and the prosecution case until after the first hearing had taken place. The case documents run to approximately 6000 pages. The copy received by defence lawyers did not contain the defence documents which had been handed to the judge at court during the first hearing on 4th March. The judge, whose first reaction was to refuse to take them, was however eventually persuaded that he should. The documents however did not make their way into the court bundle as expected. The judicial reaction to and treatment of the defence documents clearly indicates that they are considered to be of less value than the prosecution’s. These matters amount to further breaches of the equality of arms principle.
III. Access to clients to take instructions.
37. The defence lawyers were not given the opportunity to see all of the defendants before the trial and were therefore not able to prepare properly for the hearing. Of the legal conferences that did take place in the detention facilities, it is believed that none of them complied with requirements of legal privilege and were all in the presence of state security officials. If this is correct, it amounts to the most fundamental breach of lawyer client privilege.
38. The defendants have been placed in the court not only behind a glass screen but also behind a row of guards. It is impossible therefore for the defence lawyers to take instructions from their clients. The only time that communication can take place between lawyers and clients is during brief prison conferences away from the court. The coalition has been informed that it had not been possible for all defendants to have access to a lawyer by the time of the first hearing.
IV. The right to liberty and security.
39. All the male defendants in the case except for one continue to be kept in custody. Some of these defendants have been in detention for a year in appalling conditions and are alleged to have suffered torture and ill treatment as set out above.
40. All of the defendants are known previously to be of good character. They are people of high standing in society. They include Sheikh Sultan bin Kayed Al-Qasimi, chairman of Al-Islah and cousin of the ruler of the Emirate Ras al-Khaimah, three judges and two very prominent and highly respected constitutional and human rights lawyers Dr Mohammed Al-Mansoori and Dr Mohammed Al-Roken. The defendants argue that given the strong family and social ties in the country there is no risk that they will attempt to flee the jurisdiction. Some of the defendants are now in seriously ill health, in particular Ahmed Bin Ghaith Al-Suwaidi, a senior civil servant and renowned economist, whose confession forms the centerpiece of the prosecution case. He appears in very poor physical and mental health and his family is deeply concerned for him.
41. There has not been an opportunity to appeal the decisions to refuse bail. No reasons have been given for the decisions.
42. The trial has to date been heard on days at a rate of one or two days per week. It is not known when or at what rate further hearings will take place. Where defendants are held in custody pending the determination of a criminal charge they are entitled to special diligence on the part of the competent authorities and states must organize their legal systems in such a way that their courts can meet the requirement to ensure a trial within a reasonable time.
43. Many of the defendants have been in custody for over a year, they have been denied bail without any rationale and further no timetable has been set out for the future management of the trial. In these circumstances the periods of inactivity and lack of clarity about the trial’s progress suggest that the obligation to proceed with expedition is being violated.
44. The organisations which convened this trial observation are concerned that the continued detention in poor conditions, the abuse and the lack of opportunity to appeal constitute an infringement of the right to liberty and security of the person in the most fundamental terms.
- The judge appears to have failed in his duty to investigate credible and serious allegations of torture of the defendants whilst in pre-trial detention.
- The trial is proceeding in violation of internationally recognized standards of a fair trial for the reasons set out above.
45. The political system in the UAE is not based on democracy. There are no political parties and no opportunity for citizens to vote for their preferred leader. The Federal National Council is at present a consultative body decided upon by an electorate appointed after state security checks as to their suitability.
46. The incidents leading up to this trial go back to 3 March 2011 when a group of leading academics and intellectuals signed a letter that appealed to the ruler of the UAE calling for democratic reforms in the country. The letter requested the following:
1. Election of all members of the Federal National Council by all citizens as is done in democratic nations around the world.
2. Amending the articles of the constitution relating to the Federal National Council in order to grant it full legislative and regulatory powers.
In order to achieve this, the following is necessary:
1. Achieving full judicial independence and not subordinating it to the executive branch, achieving the principle of rule of law.
2. Stopping the security apparatus from intervening in all aspects of civil life.
3. Respecting rights and public and private freedoms as was agreed in international agreements and charters, principally freedoms of opinion, expression, and the press, and freedom to form associations, and lifting all restrictions that limit these.
47. According to members of Al-Islah, this petition was a response to years of state security infiltration of civil society organisations in the country and targeted harassment of members of Al-Islah. The harassment included demotions at work, sackings, withdrawal of scholarships for students, withholding trade licenses, preventing members leaving the country, and finally closing down the association.
48. In 2011, the security forces arrested five activists, who became known as the “UAE 5”, some of whom had signed the petition, and charged them with insulting the rulers of the UAE. They were found guilty and sentenced to three years imprisonment. They were subsequently pardoned in November 2011.
49. On 4 December 2011, seven members of Al-Islah had their citizenship, passports, and identification papers removed from them. On 9 April, they were charged with being illegal aliens, arrested and held at Al-Shahama Prison in Abu Dhabi. They were then moved to an undisclosed location in August 2012 and held in isolation for many months.
50. In the aftermath, security forces further arrested any activists demanding the release of the "UAE 7". By July 2012, Emirati Security Forces had detained over 64 activists, judges, lawyers, academics, and leading thinkers who had demanded the release of the detainees or who had called for freedom of expression. Among their number were highly respected legal figures; even in the recent trial hearings, the presiding Judge referred to one of the defendants, Dr. Mohammed Al-Roken, in respectful terms as “the balance of justice”. In the next wave of arrests, 11 people of Egyptian nationality were detained and accused of supporting the Muslim Brotherhood in Egypt. In January 2013, 13 female relatives of the detained were arrested, bringing the total number of accused to 94. The women were later released on bail.
51. The family members of the detainees speak of continued harassment. Many of them now have no access to funds as their bank accounts have been frozen. Their children have suffered discrimination at school. The sons of detainees were arrested and held for eight hours on 4 March for carrying photographs of their fathers in the vicinity of the court. They tried to arrest the daughter of Dr Mohammed Al-Mansoori and then she went into hiding. Abdulla Al-hadidi was arrested at 3am in the early hours of 22 March 2013.
 See http://www.anhri.net/en/?p=11831
 See appendix 1. on pages 11-15.