Bahrain: Unfair Trial of human rights defender Abdulhadi Al Khawaja, details of concerns

Front Line considers that the trial of Abdulhadi Alkhawaja (together with 20 others) was unfair and that it fell far short of international standards. The trial before the military National Safety Court which commenced on 8 May 2011 ended with the pronouncement of a life sentence in prison for Abdulhadi Alkhawaja on 22 June 2011.

Fair Trial concerns in the trial of Abdulhadi Al Khawaja before the National Safety Court

Front Line has followed the reports of proceedings carefully and in spite of twice being refused access to hearings was represented in one session by our Director Mary Lawlor. We have also interviewed a number of those who have been present in the courtroom. The following are some of the main of issues of concern:

Excessive and unnecessary force during arrest Excessive and unnecessary force was used during the arrest. Abdulhadi Al Khawaja was severely beaten when he was arrested at his daughter's home on 9 April 2011, despite not resisting arrest. He was taken away unconscious.

Incommunicado detention Abdulhadi Al Khawaja was held in incommunicado detention, with no access to his lawyer or family, in an unknown place of detention; His family was only able to speak with him on the phone 11 days later, on 20 April; He was denied access to his lawyer for 20 days following his arrest.

Restrictions on right to defence, fair trial and equality of arms Further to accessing his lawyer after 20 days of detention, Abdulhadi Al Khawaja subsequently only had brief access to his lawyer at the time of his appearances before the court, leaving no adequate time to prepare his defence; Abdulhadi Al Khawaja's lawyer was denied the opportunity to cross-examine two prosecution witnesses and was denied permission to bring witnesses for the defence.

Torture, and refusal to investigate claims of torture On his first court appearance, on 8 May, Abdulhadi Al Khawaja presented visible signs on his face. He had difficulty in speaking and his face was swollen. He reported being tortured on multiple occasions, and having to undergo a 4-hour surgery operation on his jaw as a result of his treatment during the incommunicado detention; On 16 May, he reported to his family that the officials had attempted to force him to record on videotape an apology to the King of Bahrain. Upon his refusal, the officials reportedly tried to forcibly remove his clothes and sexually assault him to force him to make such an apology. Abdulhadi Al Khawaja told his family that he was handcuffed at the time and fell to the ground as he attempted to defend himself against the attackers suffering further injuries to his head, falling briefly unconscious; Abdulhadi Al Khawaja repeatedly attempted to speak at his trial hearings, including on 9, 12 and 16 May, and make complaints about the torture he claims to have endured. On each occasion he was silenced by the judges who refused to investigate the claims of torture.

Refusal to allow international observers Two international trial observers, mandated by Front Line and Human Rights First, were refused entry into the courtroom and were forced to leave the court premises on 12 May, despite assurances by the Kingdom of Bahrain that the trail was public and observers would be allowed in.

Intimidation of family members Abdulhadi Al Khawaja and his family were intimidated by court officials who seemed to consider them responsible for the presence of international trial observers at the hearing of 12 May. The Al Khawaja family was threatened that they would not be allowed to meet him unless the international trial observers left the court premises. They were eventually not allowed to see him despite the fact that the trial observers left.

The special court and its constitutionality Abdulhadi Al Khawaja was being tried before a special court called the “Lower National Safety Court”, established pursuant to the declaration of State of National Safety by the King of Bahrain on 15 March 2011. The Kingdom of Bahrain denied the special court was a military court. However, the court was composed of three judges, one military and two civilian. The military judge presided over the proceedings. The prosecutor was a military prosecutor. The trial took place in the premises of the military court. In the prosecution's own pleadings for a similar case pending before this court (commonly referred to as 'case 75'), the prosecution stated: "We, military prosecution, being the authority having competence during this period [of 'national emergency'] to bring people to justice for charges of this nature...". This all indicates that the Lower National Safety Court is a special military court. The trial of civilians before a military court is prohibited by the Bahraini Constitution; Because of the Bahraini Constitution's prohibition to try civilians in a military court, a request was made to the Lower National Safety Court for a referral to the Constitutional Court to assess the constitutionality of the special court. However, the Lower National Safety Court rejected the request; The sitting of the Bahraini Lower National Safety Court in Abdulhadi Al Khawaja's trial also appears to be unconstitutional on the basis that, inter alia, some of the charges brought against the defendant had been made before the declaration of State of National Safety which established this court on 15 March 2011.

On the basis of the above, the following international fair trial standards appear to be violated in the proceedings against Abdulhadi Al Khawaja:

1. Right to legal assistance before trial – ICCPR Art. 14(3)(d); ARCHR Art. 13(1); 2. Right not to be held incommunicado – CAT Art. 6(3); ARCHR Art. 14(3); 3. Right to adequate time and facilities for the preparation of a defence – ICCPR Art. 14(3)(b); ARCHR Art. 16(2) and (3); 4. Right to a fair trial and equality of arms – ICCPR Art. 14(1) and (3); ARCHR Art. 13(1) and 16(5); 5. Right to humane treatment and not to be tortured while in detention – ICCPR Art. 7, 10(1); CAT Art. 2, 11, 15 and 16; ARCHR Art. 8 and 20; 6. Right not to be compelled to confess guilty or to testify against oneself – ICCPR Art. 14(3)(g); ARCHR Art. 16(6); 7. Prohibition to try civilians before a military court` (Constitution of Bahrain).

ICCPR: International Covenant on Civil and Political Rights CAT: Convention Against Torture ARCHR: Arab Charter on Human Rights

The above treaties have all been ratified or acceded to by the Kingdom of Bahrain.