5 September 2012

In response to the statement made by the Supreme Judicial Council and the subsequent press conference convened by the Public Prosecution post to the issuance of the verdicts on 4 September, 2012, the defence lawyers would like to state the following:

The Public Prosecution in its press conference, as quoted by the official Bahrain News Agency, stated that the Court of Appeal has provided all the necessary guarantees of a fair trial to the opposition leaders and activists in question and presented these alleged safeguards to the attendees. Nonetheless, the Public Prosecution neglected to address the grave violations and blatant irregularities that have plagued the entire trial process in the Court of Appeal, which have ultimately led to the unfortunate affirmation of the Military Court verdicts. The following are examples of these violations:

1. The Public Prosecution stated that a defence panel of lawyers, who were chosen by the opposition leaders and activists, was provided. Nonetheless, it conveniently neglected to mention that due to Court’s decision to convene the court sessions in secret without legal justification, the opposition leaders and activists decided to boycott the sessions in objection. As a result of this decision, the defendants have accordingly requested that their defence lawyers withdraw and refrain from attendance until the Court concedes to their demands of a public hearing. However, the Public Prosecution failed again to cite that the Court ignored the demands of the defendants, despite the fact that the Court itself had explicitly declared in its session minutes that the court proceedings were public thereby confirming the lack of legal basis for the secret sessions.

Furthermore, the Public Prosecution additionally failed to mention in its press conference that replacement lawyers were appointed by the Court, despite their knowledge of the defendants’ rejection of these appointments as confirmed in their letters to the Court, which are documented in the case files. In addition to the aforementioned, these appointments came as a direct violation of Article 20(e) of the Constitution which states that, “every person accused of an offence must have a lawyer to defend him with his consent”.

In accordance with the abovementioned, the opposition leaders and activists were effectively left without genuine defence in a highly critical phase of the trial, a phase that included the process of presenting exculpatory evidence and hearing defence witnesses. The mere presence of lawyers appointed without the consent of the defendants negates the precepts of a fair trial, as the proper role of lawyers in any case is to present a genuine defence, which was clearly lacking in this trial. Moreover, the Court refused to accept any plea submitted by the appointed lawyers without the consent of the defendants.

2. The Supreme Judicial Council and the Public Prosecution, in their statement and press conference respectively, did not refer to the constitutional principle of public hearings in criminal proceedings. This principle was blatantly violated by the Court as it converted the sessions to secret hearings in contravention of Article 105 (c) of the Constitution, Article 3 of the Judicial Authority Law and Article 214 of the Code of Criminal Procedures, which only provide for such conversion in the interest of maintaining public order or morals, conditions clearly not present in this case. The lack of legal basis for this conversion was clearly affirmed by the Court in its session minutes, particularly those of the 4 July, 2012 session, in which the Court unequivocally declared that the sessions were public. Accordingly, this is an explicit recognition of the Court of Appeal of the lack of legal grounds for secret hearings as there are no matters violating public order and morals. Moreover, no developments or further details have emerged or occurred which warrant the conversion, especially seeing as the prosecution and defence witnesses were previously heard in public hearings in the Military Courts with respect to the same charges. Furthermore, the proceedings before this Court of Appeal have been previously conducted in public, including the incriminating statements made by the opposition leaders and activists detailing the torture they have endured and responding to the alleged charges levied against them. At that time, the Court was satisfied that there were no violations impinging on public order or morals, which are the only reasons for convening sessions in secret as prescribed for by the relevant laws set out above.

3. The statement made by the Supreme Judicial Council also neglected to mention that the opposition leaders did in fact submit the names of their defence witnesses to the Court, and multiple hearings were scheduled for the testimonies of these defence witnesses accordingly. However, the Court decided to dispense of these hearings altogether just because the defendants were adamant in their demands for a public hearings and their right to present their defence witnesses in court. It follows that the Courts did not allow the opposition leaders and activists to present a genuine defence as they were prevented from bringing forth their defence witnesses. In essence, the Court’s decision to dispense of the requirement to hear defence witnesses is a direct violation of the accepted principle in criminal proceedings, as affirmed by jurists and previous verdicts, which states that the criminal judge should seek to attain the truth even if through his own endeavours. Accordingly, Article 237 of the Code of Criminal Procedures states that,

“The Court shall be empowered to order even through its own accord in the course of hearing the case the provision of any evidence it deems necessary for revealing the truth.”

The criminal judge’s decision to do without defence witness testimonies would in any case, including the case of the opposition leaders and activists, contradict his primary role of seeking the truth seeing as he will knowingly be rejecting evidence provided to him and is preventing the defendants from exercising their rights to refute the charges. This is particularly evident here as the defendants insisted on the Court hearing their defence lawyers and observing the legal procedures in a public hearing, demands that were ignored by the judge and the Court.

4. The Supreme Judicial Council and the Public Prosecution did not refer to the fact that the Public Prosecution, upon the issuance of the judgment by the Court of Cassation overturning the conviction verdicts of the Military Courts and ordering the referral of the trial to the Court of Criminal Appeal, stated in its statement issued on 30 April 2011, which seems to have anticipated yesterday’s judgment, that, “the overturning of the judgment does not necessarily mean the release of the defendants, seeing as they have been presented in the first trial while in custody, and while the essence of an overturn of judgment restores the trial to the initial state arrived at by the Public Prosecution”.

Additionally, the Public Prosecution further declared that, “due to the previous conviction judgments of both the Court of First Instance and the Court of Appeal, a verdict both the aforementioned courts agree upon and are persuaded by, it is thereby likely that the subsequent courts would affirm the judgments seeing as no change in the case, its merits or the available evidence has occurred”.

It has been demonstrated clearly through the manner and result of the proceedings taking place before the Court of Criminal Appeal to date that the outcomes correspond to the statement made by the Public Prosecution referred to above. The opposition leaders and activists have not been released and were prevented from presenting exculpatory evidence so that “no change in evidence” occurs as previously foreshadowed by the Public Prosecution.

The panel of defence lawyers had previously iterated in its statement issued on 15 July 2012 its grave concern with regards to the serious impact of such declarations made by the Public Prosecutor on the fairness and proper conduct of this trial, as they impose a dangerous political dimension. This is particularly relevant seeing as the prophecies of the previous statements made by the Public Prosecution in other cases, including the case of the medics (also known as the Occupation of Salmaniya Medical Complex Case), have been fulfilled. The judgment rendered in the aforementioned case on 14 June 2012 corresponded with the Public Prosecution statement issued on 10 March, 2012 via the Information Affairs Authority, which convicted a number of medics and vindicated others so that they can be subject to disciplinary proceedings by the Ministry of Health separately.

5. The Supreme Judicial Council stated that the trial commenced on 8 May, 2012 before the Court of Criminal Appeal and has convened 16 hearings since then. In essence, the hearings were being convened at the rate of one session per 5 days, which is an abnormal and unprecedented pace in a criminal proceeding in Bahraini courts. The accelerated sessions prevented the defence from sufficiently preparing for the hearings and organising the evidence necessary to exercise the right to genuine defence.

6. The trial of the opposition leaders and activists took place without conducting any investigations by an independent third party into the torture complains which where further avowed by mounting evidence included in the case file as follows:

a. The evidence presented by the Bahrain Independent Commission of Inquiry (BICI) in its report, which has been ratified by HM the King and the government has declared its commitment to its full implementation, particularly with respect to paragraphs 1694-1697 and 1702 which confirmed that the opposition leaders and activists have been subjected to torture and forceful extraction of confessions. The aforementioned paragraphs have placed these opposition leaders and activists in the same category as the medics, whose “confessions” the Public Prosecution had previously waived and confirmed before the Court of Appeal that they shall not be relied upon as evidence against them.

b. Reports of the international forensic medical experts of the BICI.

c. Medical reports of many of the defendants pertaining to injuries suffered at the time of arrest and post-arrest.

d. Statements provided by the opposition leaders and activists before the Court.

e. The conditions of arrest and detainment confirm their subjection to torture, including the prevention of the defendants from contacting their families and lawyers for a significant period of time lasting for a few weeks and their detention in solitary confinement.

f. The parity in the means and ways of torture and their compatibility with the methodology prescribed in the testimonies of the other detainees during the same period, which became part of public consciousness post their verification in the BICI report. This is further corroborated via the Court of Cassation’s decision on 9 January, 2012 to overturn the judgment issued by the Military Courts on the grounds that the latter should have investigated the allegations of torture raised by the defence and ascertain the link between the same and the confessions, the injuries sustained by the defendants and the date on which the same have occurred. Its failure to verify and investigate these issues will render the judgment flawed in the causation and reasoning.

g. The panel of defence lawyers acting on behalf of the opposition leaders and activists remains adamant in its belief that the Public Prosecution is unfit to investigate the complaints of torture as it has retained the confessions obtained under torture (or those genuinely suspected to have been extracted under torture). Nonetheless, this does not absolve the other authorities from instigating such investigations via other judges appointed to undertake this task, particularly seeing as the BICI report which has been accepted by the government clearly recommended the establishment of an independent body to investigate torture allegations. Naturally, the commissioning of a number of Public Prosecution officials under the same jurisdiction of this authority categorically does not satisfy the requirements of independence and impartiality.

h. The indisputable fact is that the Public Prosecution, judicial authorities, all government officials and employees obligated by law to investigate or address crimes have been made aware of the torture inflicted on the political leaders and activists. However, none of them acted in any capacity to rectify the situation, which consequently makes them liable under Article 230 of the Penal Code.

7. The opposition leaders and activists were prosecuted under grave breaches of the most important principles of a fair trial. Most importantly, the Court did not respond to a number of fundamental requests necessary for ensuring the preparation of the proper defence for the accused. These fundamental requests related to the inclusion of substantive evidence which aids in refuting the charges made against opposition leaders and activists. The requests which the Court did not respond to are as follows:

a. The request for excluding confessions obtained from the defendants under torture, as in the case of the medics or Occupation of the Salmaniya Medical Complex Case.

b. The request for excluding testimonies, investigation records and inquiries made by National Security Agency, security and military members as well as others involved in torture related to this case.

c. The request for appointing a committee of impartial and independent experts in forensic examination to examine opposition leaders and activists and to determine the time and cause of their injuries from torture during investigation, under which confessions were extracted.

d. The request for a court judge to investigate complaints of torture instead of Public Prosecution officials, whom are deemed unfit to carry this task due to their complicity and insistence on maintaining all the evidence presented against the opposition leaders and activists, including confessions extracted under torture and testimonies and evidence presented by those involved in torture, as verified by the judgment issued by the Court of Cassation previously.

e. The request of reclaiming the belongings confiscated from the houses of opposition leaders and activists during their arrest without a search warrant.

8. The statement by the Supreme Judicial Council and the Public Prosecution press conference did not refer the pattern dominating the vast majority of the trial’s session minutes, as repeated requests were made verbally and in writing by the defence lawyers to correct previous session minutes. Those minutes did not accurately reflect the reality of the hearings, as most lacked the defence requests, did not confirm the documents presented to Court during the hearings and lacked the Court’s decisions regarding some of the requests.

9. In its press conference, the Public Prosecution stated that, “the Court accepted the defendants' request to not place them behind barriers or bars within the courtroom, which is in any case a contravention of the protocols adopted in most countries in the world”. However, the truth is that the opposition leaders and activists were placed behind a glass shield, which served as a barrier to sound thereby restricting them from hearing the proceedings and blocked contact with their lawyers, thus making it impossible to continue with the proceedings. In essence, the opposition leaders and activists' presence behind the said barrier does not establish their real and legal attendance in the courtroom. Moreover, placing them behind the barrier breaches Article 218 of the Code of Criminal Procedures stating that, “the accused shall attend the hearing without restrictions or being chained”. It is therefore not a favour or charity to the opposition leaders and the defence that this law needs to be observed and the breaches immediately rectified.

It is important to note that the Public Prosecution has indicated in its press conference that the opposition leaders and activists enjoyed unfettered freedom in the courtroom and were seated next to their lawyers, which was a gross inaccuracy and a total contradiction to the reality at hand. The opposition leaders and activists complained on numerous occasions about the heavy presence of security personnel around them in the courtroom, some of whom were dressed in civilian clothing and carried telecommunication devices, all of which was documented in the hearing minutes. These security forces were an obstacle and impeded the contact between the defendants and their lawyers, as they stood at a very close proximity thereby violating the defendant and lawyer confidentiality. These issues were raised a number of times before the Court without any significant positive change to be observed and lawyers continued to complain about their inability to properly contact their clients as a result of these conditions.

In light of the abovementioned, the way the case has been progressing and the outcome of the same served to confirm that the goal was to reach an affirmation of the convictions levied against the opposition leaders and activists. This was predominantly accomplished through preventing them from having a genuine opportunity to present a proper defence resting on solid evidence, particularly through the convenient exclusion of the defence witness testimony hearings.

In conclusion, we express our deep regret for the outcome of this case. The persistent legal violations were clearly evident in the relentless non-compliance with the rights of the opposition leaders and activists, including the failure by the Court to allow them the opportunity to present their defence witnesses in a public hearing, the failure to investigate the torture complains and the serious procedural irregularities and breaches that have occurred at the time of arrest. Accordingly, we demand from all the relevant authorities in Bahrain the cessation of this ongoing disregard of defendants' rights, the securing of their immediate release, the discontinuation of all trials and the revocation of all verdicts issued from Military Courts regardless of the judgments arrived at.

Issued in Manama on this 5 September 2012.

Defencec Lawyers:

Jalil Al Aradi Mohamed Al Tajer Abdulla Al Shamlawi Sami Seyadi Mohsin Al Shuwaikh Adel Al Matrook Mohamed Al Jishi Hafez Ali Jalila Al Sayed Hameed Al Mulla Hassan Radhi Mohsin Al Alawi Mohamed Al Mutawa Taimoor Karimi