Bahrain: Statement by the Defense Team Regarding the 2nd Ruling of the Court of Cassation
In the Opposition Leaders and Human Rights Activists Case
7 January 2013.
On Monday, 7.1.2013, the second and final ruling of the Court of Cassation in the Criminal Case filed against 13 opposition leaders and human rights activists was issued rejecting all appeals and upholding the military court judgment with life imprisonment sentences for seven and prison sentences ranging from 15 to 5 years for six.
This final ruling has been preceded by hearings before four courts; two military courts and two civil courts.
The trial before the Military Court began in the month of April 2011, and a ruling was handed down after two months, i.e. in the month of June 2011, by which all 14 defendants at that time were convicted of all the charges put against them, which included allegedly establishing an organization for the purpose of obstructing the constitution employing acts of terrorism, toppling the political regime by force and conspiring with a foreign state for the purpose of toppling the regime. They were all convicted, with seven of them sentenced to life imprisonment, while the sentences of others ranged between 15 to 2 years imprisonment.
The military court’s ruling convicting them was based on the so-called “evidence” submitted by the Military Prosecution, namely:
1. “Confessions” by the leaders and activists which were extracted under duress. We have to recall here that Paragraph 1230 of the report of the Bahrain Independent Commission of Inquiry treated the leaders and activists, in terms of extracting their confessions under duress and torture, on equal footing with the Doctors in the Medical Staff Case. The Public Prosecution has previously confirmed that it shall not rely on the confessions extracted from the Doctors, as established in the Public Prosecution statement distributed in the Court room during the Doctors’ trial on 23.10.2011 (attached). However, the Public Prosecution insisted, during the trial of the leaders and activists, on the confessions, extracted from them under torture, as evidence against them. This unjustified bias and discrimination, by the Public Prosecution against defendants under the same conditions and circumstances, led to the acquittal of some of the doctors and to the big reduction of the sentences of others. Whereas, the situation as regards the Case of the leaders and activists was the opposite, as the Court upheld the military conviction and sentences passed against them, which were very stiff, with most of them being given life imprisonment.
2. The Prosecution witnesses i.e. the officers and members of the National Security Apparatus (NSA) who supervised and handled investigation, arrest and interrogation of leaders and activists were involved in torturing the leaders and activities, as confirmed by them before the Court.
3. The security reports prepared by the officers of the NSA who were involved in torturing the leaders and activities.
4. The recordings attributed to the leaders and activists, which have not been corroborated by any other evidence whether technical or otherwise, and have not been submitted as evidence during the hearings.
5. The transcriptions of speeches attributed to the leaders and activities which were tampered with by way of deletion of every mention therein to the peaceful nature of the popular uprising and the legitimate demands of the Bahraini people for a more democratic political system, social justice and accountability.
6. Ignoring all the defenses submitted by the leaders and activists defense team. In one illustrative paragraph, the military court stated in its judgment of 22 June 2011 that: “The defense of all defendants’ is summed up in substantive defenses that were submitted, such defenses were aiming at proving the lack of any legal basis to the charges attributed to the defendants, and that there is no evidence to prove such charges against each of them, while some of them pleaded that the charges are common and that they are unconceivable. …The Court does not follow the defendants in the aspects of their substantive defense pleadings or track them in every part and parcel to rebut them in an express and obvious way. But it is sufficient for the court reply to be drawn from the evidence on which the Court relied in passing its ruling, and therefore the Court is free to ignore the defendants’ defense pleadings.”
This judgment was upheld by the Military Court of Appeal three months later, i.e. in the month of September 2011.
In November 2011, the report of the Independent Commission of Inquiry concluded that the military trials failed to observe the standards of fair trials (Paragraphs 1701 to 1720).
When the Case was submitted to the Court of Cassation for the First time, it passed a ruling on 30.4.2012, overturning the ruling passed by military courts on the basis that the military courts have not inferred, i.e. have not investigated the fulfillment of the elements of the crimes attributed to the leaders and activities, namely the crime of establishing a terrorist organization for the purpose of toppling the regime, and the crime of toppling the regime by using force, as well as conspiring with a foreign state for that aim.
Following this, the Case was referred to the Criminal Court of Appeal with the hope that in this trial, the standards of a fair trial, even to their minimum, would be observed, including respect of the right of defense. However, unfortunately, what we have seen is the opposite.
1. First of all, the leaders and activists were put in the Court behind a glass barrier, thus they were not in reality attending the hearing as they could not follow up the court proceedings. After strong insistence by the defense team, this problem was overcome by allowing the defendants to attend the hearings by sitting on the Court’s benches.
2. The Court ignored the defense team repeated requests for the court to open an investigation by an independent and impartial body into the leaders and activists’ torture complaints, such torture that lead to the extract their confession under duress in order to use them as evidence against them. The defense team proved to the Court that the Public Prosecution is not apt or fit to conduct such investigations, after the Public Prosecution insisted before the court on using the “confessions,” which were extracted from them under duress, as evidence against them.
3. The Court of Appeal insisted on hearing the defense witnesses in private in the Judges’ deliberations room, and not in the Court room. When the leaders and activists insisted on their right to a public trial, the Court of Appeal decided to dispense with the hearing of their witnesses’ statements. This constituted a clear violation of the law which requires the Criminal Judge to search for the truth not to limit the source of evidence to find the truth as the Court of Appeal did to the determinant of the defendant’s right of defense.
4. After more than 10 hearings attended by some observers, the press and a limited number of the leaders and activists’ families, the Court of Appeal decided to hold the hearings in camera behind totally closed doors without any legal justification or reason. The Court also issued an order banning publication about the proceedings.
It became clear, with all these decisions and orders taken by the Court of Appeal constitute that there was a certain desire; first to prevent any serious investigation into torture which the leaders and activists were subjected to, and secondly to prevent them from submitting evidence to refute the charges put against them, whether in the Court or before public opinion.
The Public Prosecution stated, in its press release issued on 30.4.2011, immediately after the first ruling of the Court of Cassation was handed down, that “due to the precedent of issuance of a conviction judgment by the [Military] First Instance Court and the [Military]Court of Appeal, which means that two court are in concurrence on the conviction ruling and that they are both convinced of it, it is likely that the same conviction ruling will be upheld due to the fact that no change shall occurred in the Case or in its subject matter, merits or evidence.” Emphasis added.
Six months after this press release, the outcome of the trial before the Court of Appeal was exactly similar. The Court of Appeal judgment echoed the Public Prosecution’s prophecy. The fact of the trial remained the same i.e. the leaders and activists were not given any opportunity to have a serious, independent and proper investigation into torture. They were also not afforded any opportunity to call their defense witnesses in order to refute and rebut the charges ascribed to them. The Court of Appeal concluded on 4.9.2012 by completely upholding the rulings of the Military Courts.
Perhaps the most disturbing, and warring fact in this Case is that the Public Prosecution waited until the conviction ruling was issued by the Court of Appeal in order to call the leaders and activists for investigation into the crimes of torture they were subjected to for extracting their “confessions” on basis of which they were convicted, and which the Public Prosecution insisted on using as an evidence against them. This proves that the Legal System is entirely in concurrence in violating the rights of the leaders and activities to a fair trial. None of the leaders, activists or their defense team were informed of any progress in such investigation till date.
If we examine the grounds for the ruling handed down by the Court of Appeal, we will not find any substantial difference between it and that of the military judgments. It is sufficient for us to look at it in terms of upholding the charge of establishing a terrorist organization by considering popular demonstrations to mount pressure on the Government as a terrorist act.
It should be noted that the ruling has not stated or even insinuated that the demonstrations were accompanied with acts of violence. This means that the Court of Appeal admitted that the demonstrations were peaceful. This leads us to the inevitable question here, i.e. if pressure against the Government is not exercised through peaceful demonstrations and sit-ins, how otherwise it would be exercised, particularly when the opposition and human rights activities are not allowed the avail any space official media, which is in fact used to discredit them and smear their name and reputation. On the other hand, we have seen many precedents whereby the authorities in Bahrain constantly refused even to receive public petitions. Indeed, it continued to arbitrary ban or restrict gatherings, sit-ins and demonstrations violating by doing so the Bahraini citizens constitutional freedom of expression and right of gathering.
The fact is that stating that participation in popular demonstrations to put pressure on the authorities for the purpose of reforming the political system is an act of terrorism involves usurpation of the right of peaceful gatherings, the freedom of expression and the right of participation in political life by adopting a public position on the nation’s publicly debated issues.
In fact, the exercise of the right to demonstrate in order to put pressure on the authorities is the gist and core of civilized peaceful acts. It is very surprising and disturbing for a person to be branded “terrorist” for doing nothing but expressing his opinion by issuing a statement calling on people to choose the political system they prefer, by using peaceful means and through popular referendum, while the issuer of the statement is publicly accepting to submit to the people’s will whatever direction it takes.
The truth is that the ruling passed by the Court of Appeal, which convicted the leaders and activists, is in its substance a deed of their acquittal of all the charges leveled against them, including the charges of terrorism, so long as nothing has been proved against them except participation in peaceful demonstrations and issuance of statements which call for political change through peaceful means. Therefore, they are nothing but Prisoner of conscience.
Now, that the Court of Cassation ruling in issued upholding the above judgment, one would only wonder how the Court of Cassation approved the Court of Appeal reasoning that participating in peaceful demonstration constitute an act of terrorism.