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Human Rights Watch in a letter to Jordanian Prime Minister Nader al-Dahabi asked him to order the release of al-'Utaibi who the Jordanian General Intelligence Department has detained in solitary confinement for nearly two and a half years. Human Rights Watch detailed in this 9 page letter that al-'Utaibi's detention is arbitrary because spurious and changing charges against him, because of a denial of full access to legal counsel, and because of its unexplained delay in bringing al-'Utaibi to trial.

Prior Arbitrary Arrest

On December 28, 2004 the State Security Court found al-‘Utaibi not guilty for lack of evidence in the so-called Mafraq case involving a conspiracy to attack US soldiers in Mafraq in 2002. After the GID arrested and interrogated al-‘Utaibi in November 2002 in relation to the Mafraq case, he spent two years in pre-trial detention in Swaqa and Qafqafa prisons. Following his acquittal in that case, however, the GID took him back into custody without charge on December 27, 2004, and without providing any other legal basis for his detention. The GID released him six months later, on June 28, 2005.

Re-arrest

Al-‘Utaibi only enjoyed a few days of freedom. Security forces arrested al-‘Utaibi from his house in Rusaifa after midnight on July 6, just a week after his release. Earlier on July 5, he had given an interview to Al Jazeera satellite television and to print journalists about his support for and his differences with insurgents in Iraq. Security forces arrested him as the pre-recorded interview began airing on Al Jazeera. GID officers arresting al-‘Utaibi did not show an arrest warrant, but took him straight to the GID detention center in Amman, where he has remained to date.

Charge

The government’s claims regarding its charges against al-‘Utaibi, justifying his continued pre-trial detention, have varied over the past two years. Since his arrest on July 6, 2005, it has made no progress in formally bringing any charges against him to trial.

Contact with terrorist groups

Initially, then-Deputy Prime Minister and Government Spokesperson Marwan al-Muasher in July 2005 said that the government had rearrested al-‘Utaibi on charges of conspiracy because he made telephone contact with what al-Muasher said were terrorist groups in Jordan and abroad. However, two and a half years later, the government has yet to bring legal proceedings against him based on these charges.

With respect to these allegations, al-‘Utaibi told Human Rights Watch that he only called his daughter and his sister, who live in the United States. Al-‘Utaibi also said that following his re-arrest, GID interrogators did not question him about contact with international or Jordanian terrorist groups. Telephone records can easily be verified, and thus there should be little difficulty in proving contact, leaving aside whether such contact is of itself criminal, without delaying trial for two and a half years.

Legal standards
It remains unclear whether the Jordanian authorities do indeed have any evidence against al-‘Utaibi of unlawful contact with individuals who are suspected of being terrorists or with organizations deemed terrorist by the Jordanian government . Both Jordanian and international law require reasonable suspicion or cause at the time of the arrest indicating that a suspect has committed a criminal offence. Such cause must be based on some form of objective evidence. Without such substantiated cause, arrests may be arbitrary, as very much appears to be the case here.

Under Article 9 of the International Covenant on Civil and Political Rights, which was published in Jordan’s Official Gazette in June 2006 and thus became effective thereafter, “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” In order for an arrest to be reasonable, the evidence at hand would have to satisfy an objective observer that there are reasonable grounds to believe that the suspect has committed a crime1

Jordan’s Criminal Procedure Code stipulates that in order to execute an arrest warrant, a law enforcement officer, or in this case, the prosecutor who issues the arrest warrant, must have “sufficient grounds to charge” the suspect with a crime. Article 114.1 of Jordan’s Criminal Procedure Code requires “the evidence linking [the accused] to the action attributed to him to be available” in order for the prosecutor to issue a detention warrant. The prosecutor has not produced any such evidence—which by law must be available at the time of charge. The prosecutor has also not produced an arrest warrant.

The UN Working Group on Arbitrary Arrests includes in its definition of arbitrary detention cases in which “it is clearly impossible to invoke any legal basis justifying the deprivation of liberty.2

Instigating violence

In December 2006, the government offered up new justifications for its detention of al-‘Utaibi. GID director Maj.Gen. Muhammad al-Dhahabi wrote to Human Rights Watch informing us that al-‘Utaibi had been “detained by GID for instigating violence and thus charged with conspiracy to commit terrorist acts.” This letter did not mention the government’s original allegations that al-‘Utaibi had unlawfully contacted terrorist groups.

The new claim that instigation to violence, not contact with terrorist groups, lies behind al-‘Utaibi’s arrest seems to stem from the interview al-‘Utaibi gave to Al Jazeera a day before his re-arrest. Al-‘Utaibi told Human Rights Watch that before his release on June 28, 2005, GID interrogators attempted to get an undertaking from him to publicly disavow his political and religious beliefs as a condition of release, which he refused. He also said that the GID had placed no restrictions on his speaking publicly following his release, although his interrogators had expressed a strong preference that he give an interview to the Saudi-owned Al Arabiya satellite station, and not to its rival, the Qatari-owned Al Jazeera.

Muhammad ‘Isam al-‘Utaibi,al-‘Utaibi’s son, told Human Rights Watch in September 2005 that interrogators asked his father only about the Al Jazeera interview during his questioning following his re-arrest on July 5, 2005. Al-‘Utaibi confirmed this to Human Rights Watch in August 2007. According to al-‘Utaibi, GID officers brought him before the military prosecutor Fawwaz al-‘Atum within about six days of his arrest, but al-‘Atum only asked him to sign a statement affirming what he had said on the Al Jazeera interview. Without further explanation, he entered the charge of conspiracy to commit terrorist acts. Neither the GID nor the prosecution has further interrogated al-‘Utaibi.

Legal standards
A transcript of the Al Jazeera interview is publicly available, and the determination of whether al-‘Utaibi instigated violence, banned under international human rights law as prohibited speech, would need to include an assessment of his direct and immediate incitement against clearly defined persons and the likelihood of such violence taking place.

Without evidence that al-‘Utaibi instigated violence in the interview in question, his arrest on the basis of it would also violate his freedom of expression. The UN Working Group on Arbitrary Arrests includes in its definition of arbitrary detention cases in which “the deprivation of liberty results from the exercise of the rights or freedoms,” such as the right to freedom of expression.3

Conspiracy to commit terrorist acts

The charge of conspiracy against al-‘Utaibi equally lacks credibility and evidence to support it. Conspiracy to commit terrorist acts was the most common charge for persons arrested at the GID during Human Rights Watch’s visit there in August 2007. It appears to be the most flexible charge used by prosecutors seeking a formal basis for a detention warrant.

Legal standards
Jordanian jurisprudence has clarified that several conditions must be satisfied for the crime of conspiracy to be committed. The Court of Cassation in the case 499 of the year 1999 ruled that article 107 of Jordan’s Penal Code criminalizing conspiracy requires 1) the existence of an agreement, 2) that the agreement is concluded between two or more persons, 3) that the purpose of the agreement is the commission of a felony against the security of the state, and 4) that the agreement include specification of the means conducive to carrying out the purpose of the conspiracy. The ruling further specified that in the case of conspiracy to carry out terrorist acts, conspirators have to show both knowledge and will to commit crimes in order to fulfill the necessary element of criminal intent.4

It is difficult to imagine legally proving al-‘Utaibi’s complicity in a conspiracy to commit terrorist acts under these conditions through his mere participation in a pre-recorded interview for television.

Denial of a speedy trial

Whatever the precise nature of the charges against them, all defendants have a right to a speedy trial. On December 4 2007, al-‘Utaibi completed two years and five months in pre-trial detention, without signs that the prosecution was moving towards a trial, despite repeated assertions that they were continuing to gather evidence.

In September 2006, Jordanian officials made clear that they were still trying to actually find evidence to support charges against al-‘Utaibi. Counterterrorism chief Ali Burjaq of the GID told Human Rights Watch that the GID was continuing to investigate evidence in the case. At the same time, military prosecutor Ra’id Azmiqna told Human Rights Watch, in connection with this case that foreign intelligence services are not always as quick with providing information as they would like them to be. His colleague Fawwaz al-‘Atum repeated this claim to Human Rights Watch in August 2007.

Legal standards
While ongoing efforts to collect evidence can provide legal grounds for continuing the pre-trial detention of a suspect, the government must meet certain criteria, with judicial approval, for such ongoing detention. The prosecution must show that it is not unduly delaying its efforts, and a court must evaluate whether the prosecution will likely obtain the evidence it is claiming to seek and whether a delay can justify the continued deprivation of liberty, which must always remain an exception (see below: Denial of right to challenge the lawfulness of detention).

Article 9.3. of the International Covenant on Civil and Political Rights (ICCPR) gives detainees charged with a criminal offence the right “to trial within a reasonable time or to release.” In its General Comment No. 8 interpreting the ICCPR, the Human Rights Committee stated that regarding “the total length of detention pending trial[,] … [p]re-trial detention should be an exception and as short as possible.” Article 14.3.(c) of the ICCPR states that anyone has the right “to be tried without undue delay.”

The charges against al-‘Utaibi as formally filed and as explained by government officials call into serious question the government’s position that it is continuing to seek evidence. Doubt about the government’s seriousness is compounded by the lack of al-‘Utaibi’s access to legal counsel and to the prosecution’s file on him.

Denial of Access to Legal Counsel

Al-‘Utaibi claims that when he appeared before the prosecutor in July 2005, he requested the presence of a lawyer, Salih al-‘Armouti, the head of the Jordanian Lawyers’ Association, but that the prosecutor refused his request. Al-‘Utaibi then insisted that the phrase “I was not allowed to have a lawyer present” be added to his statement to the prosecutor before he sign. The prosecutor agreed, and he signed. Nevertheless, al-‘Utaibi continued a hunger strike to demand access to legal counsel, but was unsuccessful.

Nearly two years later, in April 2007, al-‘Utaibi again began a hunger strike demanding access to legal counsel and to see his father, who was fatally ill. According al-‘Utaibi, the deputy chief for counter-terrorism at GID, Habis Samir al-Hunaini, refused his request. After al-‘Utaibi had continued his strike for several weeks, chief interrogator Ali Burjaq offered to allow al-‘Utaibi to see his father, as long as he dropped the request for a lawyer. Another GID official, Haitham [full name unavailable], reportedly made the same offer.

At the time, al-‘Utaibi’s family had retained lawyer Majid al-Liftawi to represent him. Although al-Liftawi had gone to the prosecutor’s office several times to obtain a power of attorney from al-‘Utaibi, the prosecutor had refused to allow him to meet his prospective client, claiming that he needed a request from the detainee himself.

Muhammad al-‘Utaibi informed Human Rights Watch that his family informed a GID officer, asking him to inform the director of the GID detention center so that he might bring al-‘Utaibi to the prosecutor, whose offices are a short distance away, in order to inform the prosecutor once again of his request for al-Liftawi to be his attorney. The detention center director, however, refused, saying that it is up to the prosecutor, not the GID officers, to request meetings with detainees. This example highlights the extreme difficulty in officially registering a request for and having access to legal counsel for GID detainees.

According to al-‘Utaibi, the GID finally agreed to his request for a lawyer when he continued his hunger strike and brought him to the prosecutor’s office, on condition that he appoint not al-Liftawi, but another lawyer. Prosecutor al-‘Atum then called al-Liftawi, and al-‘Utaibi told him he did not want to appoint him, quickly adding “I am being pressured,” at which point the line was cut. The prosecutor then called al-‘Utaibi’s family, and al-‘Utaibi told them that he needed a different lawyer. They gave a different name, Yasir al-Ta’miri. The prosecutor refused al-‘Utaibi’s request at the time to speak to his father by telephone. His father died not long thereafter.

A short time later, al-‘Utaibi was able to give al-Ta’miri his power of attorney in the prosecutor’s office. At that point, according to al-‘Utaibi, al-‘Atum removed the paper where al-‘Utaibi had written “I was not allowed to have a lawyer present” and started a new file. Although al-‘Utaibi has been in continuous detention without trial since July 6, 2005, and near-continuous detention since December 28, 2004, the GID has registered his date of detention as April 16, 2007 according to the registry of current detainees the GID gave Human Rights Watch.

Despite having finally been allowed to appoint a lawyer on April 19, 2007, al-‘Utaibi does not have meaningful access to the lawyer, and does not even have his telephone number. He has only met the lawyer once.

Al-‘Utaibi has had regular visits from his family once a week, at times lasting longer than those of other detainees.

Legal standards
Principle 17 of the Body of Principles on Detention states that a detainee has the right “to have the assistance of a legal counsel … [and to] be provided with reasonable facilities for exercising it.” Failure to provide due process rights to detainees may also constitute arbitrary detention. The UN Human Rights Committee, which monitors state compliance with the ICCPR and provides authoritative interpretation of the Covenant, explained in reviewing one case that: “arbitrariness” is not to be equated with “against the law,” but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.”5 In his authoritative commentary on the ICCPR, Manfred Nowak included elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality in the meaning of arbitrariness.6

The obstruction by GID officials and military prosecutors of al-‘Utaibi’s right to legal counsel can only be described as unreasonable, inappropriate, capricious and unjust.

Denial of the Right to Challenge the Lawfulness of Detention

Yasir al-Ta’miri, who works closely with Majid al-Liftawi, presented a request for bail for al-‘Utaibi to the prosecutor on April 26, but received no reply. Around May 3, the lawyer presented another request for bail to the State Security Court, which has jurisdiction over the crime of conspiracy to commit terrorist acts. The State Security Court is also the judicial authority that, after a period of six months, decides on remand in custody for pre-trial detainees. Again, the Court did not respond. Around May 17, the lawyers appealed to the Court of Cassation to require the State Security Court to respond. On August 13, al-Liftawi went to the Court of Cassation because no response had been forthcoming. He learned that the Court of Cassation had asked the military prosecution for al-‘Utaibi’s file around July 15, but that it had not received it. In August 2007, military prosecutor al-‘Atum told Human Rights Watch that he had never received a request for al-‘Utaibi’s file from court.

Legal standards
Article 9.4. of the ICCPR gives any detainee the right “to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”

Jordanian law does not provide for habeas corpus suits which allow a detainee to challenge the lawfulness of their detention. Instead, requests for bail hearings effectively take the place of hearings to determine the lawfulness of detention as the only legal means to obtain one’s liberty pending trial.

In Jordan, the prosecutor, not an independent and impartial court of law, determines remand in custody and has the authority to grant bail up to a period of six months for felonies.

However, the prosecutor‘s office is not an appropriate body to determine bail or review the lawfulness of detention. Jordanian prosecutors are neither independent, nor impartial. Administratively, the military prosecutor at the State Security Court depends on the military chain of command, which is a part of the executive. A prosecutor is also never impartial, as he or she takes an active part in the trial of the suspect, which has an interest in securing a conviction. The UN Human Rights Committee examining a case of a legal system with a similar, but in fact more limited, role for the prosecutor, stated that it was “not satisfied that the public prosecutor could be regarded as having the institutional objectivity and impartiality necessary to be considered an ‘officer authorized by law to exercise judicial power’ within the meaning of article 9(3) of the Covenant.”7

The practical impossibility for al-‘Utaibi to obtain independent, judicial review of the lawfulness of his detention is another factor making his detention arbitrary and violating his due process rights. Taken together with his inability to have effective access to legal counsel, these violations fulfill the criteria of the third category of arbitrary arrests as defined by the UN Working Group on Arbitrary Arrests: “When the total or partial non-observance of the international norms relating to the right to a fair trial … is of such gravity as to give the deprivation of liberty an arbitrary character.”8

Detention conditions

In comparison with the six regular Jordanian prisons (Muwaqqar, Swaqa, Balqa’, Qafqafa, ‘Aqaba, Juwaida) that Human Rights Watch has visited, the GID’s physical conditions are better. In general, cells are clean, adequately sized, and well-maintained.

Detainees in GID custody are, however, subject to a system of rigorously enforced incommunicado detention and solitary confinement. Detainees are held in single cells and exercise alone. They are not allowed to speak with prisoners in neighboring cells, or make any other audible sounds while in their cells or in the exercise yard. They are not even allowed to talk to guards, except to communicate necessary information. Such detention conditions can amount to ill-treatment and even torture, especially when detainees must endure them over a prolonged period of time.

Al-‘Utaibi has been subject to these severe restrictions on social interaction for more than two and a half years. During this period (except for the few days when he was released), he has spoken only to his interrogators, family visitors, and the occasional visitor from the International Committee of the Red Cross and the National Center for Human Rights.

International norms require that stricter forms of isolation be imposed only after establishing that less drastic means are unavailable to meet the need. They also require regular and transparent reviews of confinement in isolation.9 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has argued that prolonged, consecutive solitary confinement can constitute ill-treatment:

The principle of proportionality calls for a balance to be struck between the requirement of the situation and the imposition of a solitary confinement-type regime, which can have very harmful consequences for the person concerned. Solitary confinement can in certain circumstances amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should last for as short a time as possible.10

Jordan’s Law on Correctional and Rehabilitation Centers, which the GID does not in practice apply to its detention facility, allows for a maximum of only seven days of solitary confinement without visitation.11

1United Nations, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, (New York and Geneva: United Nations, 2003), Chapter 5: “Human Rights and Arrest, Pre-Trial Detention and Administrative Detention,” p. 174.

2UN Working Group on Arbitrary Detentions, “Individual Complaints, Urgent Appeals, Deliberations,” http://www.ohchr.org/english/issues/detention/complaints.htm (accessed November 16, 2007).

3UN Working Group on Arbitrary Detentions, “Individual Complaints, Urgent Appeals, Deliberations,” http://www.ohchr.org/english/issues/detention/complaints.htm (accessed November 16, 2007).

4Court of Cassation, Criminal Section, “Ruling 499/1999,” Judicial Journal (al-Majalla al-Qada’iya), p. 475/7.

5Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN doc. GAOR, A/49/40 (vol. II), p. 181, para. 9.8.

6Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, (Kehl am Rein: N.P. Engel, 1993), p. 172.

7UN Human Rights Committee, Communication No. 521/1992, Kulomin v. Hungary (Views adopted on 22 March 1996), in UN doc. GAOR, A/51/40 (vol. II), p. 81, para. 11.3, quoted in: United Nations, Human Rights in the Administration of Justice, p. 189. The Committee stated: “it is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with.” A European Court of Human Rights decision in 1998 clarified its understanding of the meaning of the independence required for a judicial review of detention: “the ‘officer’ must be independent of the executive and the parties… at the time of the decision on detention…: if it appears at that time that the ‘officer’ may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt.” European Court of Human Rights, Case of Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3298, para. 146.

8UN Working Group on Arbitrary Detentions, “Individual Complaints, Urgent Appeals, Deliberations,” http://www.ohchr.org/english/issues/detention/complaints.htm (accessed November 16, 2007).

9European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Icelandic Government on the Visit to Iceland, conducted between 6 and 12 July 1993, Strasbourg, France, 28 June 1994, CPT/Inf (94) 8, p. 26, http://www.cpt.coe.int/documents/isl/1994-08-inf-eng.htm#II.B.3 (accessed June 8, 2006).

10European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 2nd General Report, CPT/Inf(92)3, p.20.

11Art. 38.d., Law No. 9 (2004) on Correction and Rehabilitation Centers, published in the Official Gazette No. 4656, April 9, 2004, p.2045.

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