Kuwait: Death Penalty in Flawed Trials

(Beirut) – Kuwait’s first instance criminal court sentenced two men to death on January 12, 2016, after a flawed trial. The authorities should drop the death penalty charges on appeal.

The court convicted Hassan Hajiya, a Kuwaiti national, and Abdulreda Dhaqany, an Iranian national, of spying for Iran and Hezbollah, in both cases without adequate legal representation.

“Issuing a death penalty sentence, especially after flawed proceedings, is a terrible way for the Kuwaiti authorities to begin 2016,” said Joe Stork, deputy Middle East director. “The authorities should commute the executions immediately and reinstate the moratorium that had been in place from 2007 to 2013.”

Hajiya’s lawyer, Khaled al-Shatti, said that his client was held and interrogated on an almost daily basis from August 13 to September 1, 2015, by Homeland Security, the Interior Ministry body focused on internal terrorist threats, and the state’s prosecution authorities, without any access to legal representation. His lawyer sought access to the interrogations but, al-Shatti said, the attorney general denied him and all of the other lawyers of the 24 other defendants who faced similar charges access to their clients.

Al-Shatti finally was able to represent his client before a judge in a “renewal hearing” on September 2, when the prosecution requested an extension of a 10-day pretrial detention period to continue investigations, which the judge granted. Substantive trial proceedings began on September 15, with lawyers present, and the court held 11 hearings before sentencing Hajiya to death.

Dhaqany was not arrested, nor was he represented by a lawyer before three judges in Kuwait’s first instance criminal court sentenced him to death in absentia on January 12. He is currently outside the country.

International law does not prohibit trial in absentia, but holds that it is an inadequate substitute for the normal trial process, where an accused is present to face his accusers. Courts trying defendants in absentia should institute procedural safeguards to ensure the defendants’ basic rights, such as notifying them in advance of the proceedings, their right to representation in their absence, and affirming their right to a retrial on the merits of the conviction following their return to the jurisdiction.

State prosecutors brought charges of espionage and possession of arms without a license against 26 people in all, many of whom alleged abuse during the interrogation period. Judges found 24 people guilty of possessing arms without a license and 18 among them for spying.

One of those sentenced, Zuhair al-Mahmeed, in a note to one of the first instance judges during proceedings, alleged that during interrogations, officers from Homeland Security had beaten him in his head, neck, back, and face; kicked his legs; gave him electric shocks; made him stand for hours; and deprived him of sleep for six days. He also alleged that they threatened to strip off his clothes, hang him by his feet, mistreat other members of his family, and confiscate his and their citizenship.

A forensics report issued on August 23, reviewed by Human Rights Watch, found that three suspects, not including Hajiya and Dhaqany, had abrasions to their wrists caused by metal shackles and had varying degrees of bruising and abrasions to different parts of their bodies caused by a solid object. A fourth suspect had bruising to the base and back of his right-hand index finger.

Another forensics report issued on September 20, about 45 days after suspects alleged they were abused, found that five suspects showed signs of abrasions from shackles applied at various times to their wrists, and two showed signs that their ankles had been shackled earlier during their detention. The judge did not open investigations into any of the torture allegations.

Judges cleared al-Mahmeed of all spying charges and sentenced him to five years in prison for the possession of weapons without a license.

After a de facto moratorium on the death penalty since 2007, Kuwaiti authorities executed five people in 2013. In September 2015, a court sentenced seven people to death in relation to the Shia Imam Sadiq Mosque bombing in June. On December 13, the appeals court upheld the death penalty for one of them and commuted the other sentences. Al-Shatti hopes to appeal Hajiya’s death sentence within the next three weeks.

Human Rights Watch opposes the death penalty in all circumstances as an inherently irreversible, inhumane punishment. A majority of countries in the world have abolished the practice. On December 18, 2007, the United Nations General Assembly passed a resolution by a wide margin calling for a worldwide moratorium on executions. The UN Human Rights Committee has said that,“In cases of trials leading to the imposition of the death penalty scrupulous respect of the guarantees of fair trial is particularly important.”