
URGENT APPEAL - THE OBSERVATORY
New information
SDN 001 / 1016 / OBS 084.6
Judicial harassment / Arbitrary detention /
Acquittal
Sudan
January 20, 2017
The Observatory for the Protection of Human Rights Defenders, a
partnership of FIDH and the World Organisation Against Torture (OMCT), has
received new information and requests your urgent intervention in the
following situation in Sudan.
New information:
The Observatory has been informed by reliable sources about developments
in the judicial harassment against five human right defenders working at the
Centre for Training and Human Development in Sudan (TRACKs)
[1], namely Mr.
Al
Hassan Kheiry, a computer technician, Ms.
Arwa
Elrabie, the Administration Manager, Ms.
Imany-Leyla
Raye, a student volunteer, Mr.
Khalafalla Al-Afif
Mukhtar, the Director, and Mr.
Midhat A. Hamdan, a
trainer, as well as against the Director of Zarqa Organisation for Rural
Development (ZORD) who had delivered training for TRACKs, Mr.
Mustafa Adam, as well as the arbitrary detention of the last three
(see background information).
According to the information received, on January 19, 2017, the Khartoum
Central Criminal Court decided to drop all charges against Mr. Al Hassan
Kheiry, Ms. Arwa Elrabie and Ms. Imany-Leyla Raye. The court confirmed that
Messrs. Khalafalla Al-Afif Mukhtar and Midhat A. Hamdan would be prosecuted
under Article 66 of the Criminal Code (dissemination of false information)
and Article 14 (cyber-crimes). Mr. Khalafalla Al-Afif Mukhtar will also face
charges under Article 7 of the Voluntary and Humanitarian Work
(Organization) Act 2006 (receipt of foreign funds without informing the
authorities). Mr. Mustafa Adam will be prosecuted under Article 53
(espionage) and Article 55 (possession and dissemination of official
documents). The defendants’ lawyers requested the release on bail of
Messrs. Khalafalla Al-Afif Mukhtar, Mustafa Adam and Midhat Afifi Hamdan.
However the request is still pending. This was the twentieth hearing since
the opening of the trial on August 24, 2016. The next trial session has been
scheduled for January 24, 2017 at 1.30 pm.
Messrs. Khalafalla Al-Afif Mukhtar, Mustafa Adam and Midhat Afifi Hamdan
remain arbitrarily detained in Al-Huda prison in Omdurman, despite a United
Nations Working Group on Arbitrary Detention (UNWGAD) decision requesting
their immediate release (see below).
The Observatory expresses concerns regarding the deteriorating health of
Mr. Khalafalla Al-Afif Mukhtar, who suffers from a heart condition and does
not have access to appropriate medical care in prison.
The Observatory therefore urges the Sudanese authorities to release
immediately and unconditionally Messrs. Khalafalla Al-Afif Mukhtar, Mustafa
Adam and Midhat A. Hamdan and drop all the charges against them, since they
only aim at sanctioning their legitimate human rights activities. It also
welcomes the court decision to drop all charges against Mr. Al Hassan
Kheiry, Ms. Arwa Elrabie and Ms. Imany-Leyla Raye and thanks all those who
have mobilised in their favour.
Finally, until all charges are dropped against all of them, the
Observatory urges the Sudanese authorities to ensure that the conditions of
detention of the three above-mentioned human rights defenders are humane,
and that all judicial proceedings against the six are carried out in full
compliance with their right to a fair trial, as protected under
international law.
Background information:
On March 26, 2015, approximately ten plain-clothed National Intelligence
and Security Services (NISS) agents raided TRACKs’ premises, during
the last day of a training on “social responsibility and active
citizenship”. No search warrant was presented and computers and
documents belonging to TRACKs were confiscated. Mr. Khalafalla Al-Afif
Mukhtar was detained for one day following the raid and later released on
bail.
Following the raid, on April 16, 2015, Mr.
Adil Bakheit,
member of the Board of Trustees of the Sudan Human Rights Monitor (SHRM)
[2]was arrested and charged with
“joint acts in the execution of criminal conspiracy, undermining the
constitutional system, waging war against the State, calling for opposition
to public authority by use of violent or criminal force, publication of
false news, and impersonating a public servant”.
In May 2015, Mr. Khalafalla Al-Afif Mukhtar was charged with a number of
crimes, including “criminal conspiracy”, “undermining the
constitutional system” and “waging war against the State”
and later released on bail.
On June 3, 2015, Mr. Adil Bakheit was released on bail.
On February 10, 2016, Mr. Khalafalla Al-Afif Mukhtar received a phone cal
from the NISS Prosecution Office of Crimes against the State, he was
informed by the prosecutor that after 11 months of looking into the five
laptops and the server of the centre, they did not find any evidence to
support the charges made against them and therefore they decided to drop
the
case. The prosecutor also informed him that NISS had two weeks to appeal
their decision. If NISS did not appeal within the timeframe, then Mr.
Mukhtar should come to the NISS Prosecution Office in order to collect his
laptops and the server that had been confiscated.
On February 29, 2016, NISS officers raided for the second time TRACKs
offices without any warrant and brought the staff present in the premises to
the police station in order to interrogate them for 12 hours on
TRACKs’ activities, including on their relation to the Al-khatim Aldan
Center for Enlightenment (KACE)
[3]. Moreover, the NISS officers severely threatened, verbally abused
and ill-treated them for hours.
On May 22, 2016, Messrs. Khalafalla Al-Afif Mukhtar, Mustafa Adam, Midhat
A Hamdan, Al Hassan Kheiry, Ms. Arwa Elrabie and Ms. Imany-Leyla Raye as
well as three other TRACKs staff, Ms. Nudaina Kamal,
accountant, Mr. Khuzaini El Hadi and Mr. Al Shazali
Ibrahim Al Sheikh were summoned to the NISS Department in Khartoum.
Only two of them were questioned and further threatened in relation to their
personal activities, including their activism and sources of income, while
others were kept waiting before all the individuals summoned were placed in
custody pending further investigations.
Ms. Nudaina Kamal was released shortly after her arrest on the same day.
Ms. Arwa Elrabie and Ms. Imany-Leyla Raye were released on bail on May 30;
Messrs. Hassan Kheiry, Khuzaini El Hadi and Al Shazali Ibrahim Al Sheikh on
June 7, 2016.
On August 15, 2016, Messrs. Khalafalla Al-Afif Mukhtar, Mustafa Adam and
Midhat Afifi Hamdan were transferred to Al Huda prison after spending almost
three months in a narrow cell with poor ventilation and access to food, no
access to medication and limited access to toilet at the State Prosecution
office and were charged for the same offences.
On August 24, 2016, the trial against Messrs. Khalafalla Al-Afif Mukhtar,
Mustafa Adam, Midhat Afifi Hamdan, Al Hassan Kheiry, Ms. Arwa Elrabie and
Ms. Imany-Leyla Raye on charges under the 1991 Criminal Act of
“criminal conspiracy” (Article 21), “undermining the
constitutional system” (Article 50), “waging war against the
State” (Article 51) and “espionage” (Article 53)
[4] opened before the Khartoum
Central Criminal Court.Such offences are classified as crimes against the
State and carry the death penalty. Messrs. Midhat Afifi Hamdan and Mustafa
Adam are also facing charges under Article 14 of the Information Crime Law.
These charges relate to accusations of producing, setting, sending, storing
or promoting indecent content through internet, computer or alike that
affect public order or morals. They carry additional sentences of
imprisonment up to ten years and a fine.
On August 25, 2016 the UN Working Group on Arbitrary Detention (WGAD)
adopted a decision
[5], which
found the deprivation of liberty of Mr. Al Hassan Kheiry, Ms. Arwa Elrabie,
Ms. Imany-Leyla Raye, Mr. Khalafalla Al-Afif Mukhtar, Mr. Midhat Afifi
Hamdan, Mr. Mustafa Adam, Mr. Al Shazali Ibrahim Al Sheikh, Mr. Adil
Bakheit, and Mr. Khuzaini El Hadi to be arbitrary and thus in violation of
their rights as enshrined in Articles 9.2 and 19 of the ICCPR and 19 of the
UDHR.
On September 22 and 29, 2016, the Prosecutor showed a number of personal
pictures and materials found on the laptops of the defendants
[6], although completely
irrelevant to the charges and in blatant breach of their right to privacy
and property. Furthermore, the Prosecutor claimed TRACKs’ activities
were used to carry on the work of KACE despite being shut down by the
authorities in 2012.
The Prosecutor also claimed that TRACKs was operating without being
registered as a training centre, since their licence ended on March 27,
2015. However, TRACKs’ application to renew their licence in due time,
which included the payment of registration fees to the National Centre for
Training, has been delayed by the authorities due to “internal
issues”. The status of their application is therefore still pending,
which nonetheless enables TRACKs to legally operate under Sudanese
legislation.
The hearing of September 29, which started with two hours delay due to the
late arrival of both Prosecutor and Investigator, was eventually suspended
due to a power cut.
On October 6, 2016, the Prosecutor continued showing evidence allegedly
found on Mr. Mustafa Adam’s laptop and without any relevance to the
proceedings. Amongst the documents brought forward, some of them were
allegedly including “information about the Sudanese regime”
[7].
The Prosecutor also presented the registration form filled out by TRACKs
to the National Center for Training. In this document, TRACKs requested to
be registered as a centre that works on trainings covering a wide scope of
issues such as NGO, time and project management as well as proposal-writing,
negotiations, conflict analysis and youth capacity-building. The Prosecutor
argued that TRACKs was not registered to carry out trainings on human rights
and human rights monitoring.
Lawyers of the defendants requested evidence to be stamped by the forensic
laboratory and cross-examined.
On October 13, 2016 a power cut led the hearing to be held in a very small
courtroom on the ground floor, thus preventing many journalists, activists,
family members of the defendants as well as a diplomatic staff member from
entering the room despite their protests, in breach of the principle of
publicity of debates.
During the hearing, the Prosecutor continued showing evidence allegedly
found on the laptops of the defendants. These included evidence completely
irrelevant to the proceedings, such as a list of names of invitees to the
Human Rights Council and a letter addressing the German Democratic
Republic
[8]. Amongst the
documents brought forward were also a report on human trafficking in Sudan
addressing the role of state forces as well as Mr. Mustafa Adam’s
membership to the International Criminal Court Coalition.
On October 22, once more, the Prosecutor showed evidence allegedly found
on the defendants’ laptops. Amongst these were reports about workshops
and training sessions on the human rights situation in Sudan, as well as on
the rights and protection of human rights defenders under international
law.
In his final attempt to portray TRACKs and its members as working against
the Sudanese State, the Prosecutor blamed the organisation and its work for
the “negative opinion” the International Criminal Court (ICC),
the United Nations (UN) and the European Union (EU) have of the Sudanese
President, Omar al-Bashir, and for the economic sanctions adopted against
Sudan. According to him, “TRACKs’ activities are responsible for
the demise of the State”.
In addition, the Prosecutor focused part of his intervention on a former
member of KACE, who is neither physically in Sudan, nor a member of TRACKs
or part of this case. In spite of these elements, and without any evidence
provided, the Prosecutor nonetheless argued that TRACKs was “working
alongside him to support the military opposition in Darfur”.
During the same October 22 hearing, two journalists were prevented from
entering the courtroom. In particular, Mr. Adil Color,
Al-Ayam journalist, had his press card confiscated and was forced to
leave the courthouse following acts of harassment against him while trying
to cover the trial. As for journalist Mr. Ibrahim al-Safi, he was stopped at
the door, and taken to an office downstairs before activists intervened to
take him out.
On November 10, the trial resumed with an hour delay. On that day, the
defence team proceeded to the cross-examination of the investigator
representing the States Crimes Prosecution Office on the evidence and
arguments provided by the Prosecutor. The latter denied any knowledge of the
international human rights framework, and of the International Criminal
Court (ICC) investigation in Darfur despite the Prosecutor’s previous
attempts to blame TRACKs and its members for the “negative
opinion” the ICC, the United Nations (UN) and the European Union (EU)
have of the Sudanese President, Omar al-Bashir, and for the economic
sanctions adopted against Sudan (see background information).
The defence team also claimed that the investigator had committed some
procedural irregularities with respect to the search warrants and seizures
that took place within TRACKs premises.
In addition, on November 10, two journalists were violently arrested and
briefly detained by NISS officers. Namely, Mr. Ibrahim
al-Safi and Ms. Amel Habbani’s phone were
searched for allegedly taking pictures inside the courthouse. The security
officers slapped Ms. Habbani as she refused to hand in her cell phone.
Further hearings dedicated to the cross-examination of evidences presented
by the investigator by the defence and the State prosecutor team took place
on November 17, 22 and 29, 2016.
On December 6 and 13, 2016, the court heard several witnesses, including
NISS officers.
On December 27, 2016, the court heard two witnesses presented by the State
Crime Prosecutor.
On January 10, the Court heard the testimonies of two witnesses. First,
the Ambassador of Sudan before the United Nations in Geneva was brought to
the bar to report on the negative impact on Sudan diplomatic relations with
foreign actors of the alleged activities of the defendants. He claimed that,
even though civil society organisations are allowed to work and report on
human rights violations, these reports must not have any political content
and must be submitted to the government for approval before being
disseminated to foreign bodies. He was also asked to give his opinion on
films found during the search, such as the documentary Beats of the
Antonov and the movie Attack on Darfur.
Secondly, a specialist in film montage was brought as witness to discuss
the credibility of the scenes in Beats of the Atonov and Attack
on Darfur. He stated that the films aimed at tarnishing the image of
Sudan in the eyes of the viewer.
On January 12, 2017, the judge interrogated the six defendants on their
relations to TRACKs, their involvement with the centre and the various
activities conducted. Mustafa Adam was also questioned regarding his
relation to the International Criminal Court (ICC).
The next hearing was scheduled for January 19, 2017 at 12 pm. During this
session, the judge was to decide whether the charges should be dropped or
confirmed.
Furthermore, Mr. Khalafalla Al-Afif Mukhtar, Ms. Arwa Elrabie, Ms. Nudaina
Kamal and Mr. Adil Bakheit are also facing the similar charges in another
court case related to another raid conducted at TRACKs’ offices on
March 26, 2015. The case was dropped on February 2016 by the State Crimes
Prosecution Office, and re-opened by the same on August 15, 2016. Their
first hearing should have taken place on August 24, 2016 but has already
been postponed three times and no date for the next hearing has been set
yet.
Actions requested:
The Observatory urges the authorities of Sudan to:
i.
Release immediately and unconditionally Messrs. Khalafalla Al-Afif Mukhtar,
Mustafa Adam and Midhat A Hamdan and guarantee in all circumstances their
physical and psychological integrity;
ii. Drop all charges
against Messrs. Khalafalla Al-Afif Mukhtar, Mustafa Adam and Midhat A
Hamdan, as they only aim at sanctioning their human rights activities;
iii. Put an end to any
kind of harassment, including at the judicial level, against them, as well
as against all human rights defenders in Sudan, and ensure in all
circumstances that they are able to carry out their activities without
hindrances;
iv. Conform to the
decision of the UNWGAD of August 2016;
v. Conform in
any circumstances with the provisions of the UN Declaration on Human Rights
Defenders, in particular its articles 1, 6 and 12.2;
vi. Ensure in all
circumstances respect for the right to a fair trial as enshrined in Article
10 of the Universal Declaration of Human Rights and Article 14 of the
International Covenant on Civil and Political Rights (ICCPR);
vii. Ensure in all circumstances
respect for human rights and fundamental freedoms in accordance with
international human rights standards and international instruments ratified
by Sudan.
Addresses:
·Mr.Omar Hassan Ahmadal-Bashir, President of Sudan;
Fax:+249183783223
·Mr. Awad Al Hassan Al Nour, Minister of Justice; Fax:
249183764168/+249183770883; Email:
moj@moj.gov.sd
·Mr. Ibrahim Ahmed Ghandour, Minister of Foreign Affairs;
Fax:249183772941
·Mr.Ismat Abdelrahman Zeinalabdin,Minister of Interior;
Fax:+249183779383/+249183776554; Email:
ministry@mfa.gov.sd
·Advisory Council for Human Rights, Rapporteur;
Fax:+249183770883
·H.E. Mr. Mustafa Osman Ismail Elamin, Ambassador, Permanent
Mission of the Republic of Sudan to the United Nations in Geneva; Fax:
+41227312656/+41227161970; Email: mission.sudan@bluewin.ch
·Embassy of Sudan in Brussels, Avenue F.D. Roosevelt 124, 1050
Brussels, Belgium. Fax: 0032(2)6483499, Email:
sudanbx@yahoo.com
Please also write to diplomatic representations of Sudan in your
respective countries.
***
Paris-Geneva, January 20, 2017
Kindly inform us of any action undertaken quoting the code of this appeal
in your reply.
The Observatory for the Protection of Human Rights Defenders (the
Observatory) was created in 1997 by FIDH and the World Organisation Against
Torture (OMCT). The objective of this programme is to intervene to prevent
or remedy situations of repression against human rights defenders. FIDH and
OMCT are both members of ProtectDefenders.eu
, the European Union Human Rights Defenders Mechanism implemented by
international civil society.
To contact the
Observatory,call the
emergency line:
· Tel and fax FIDH:
+33(0)143552518/+33143551880
· Tel and fax OMCT:
+41(0)228094939/+41228094929
[1]
TRACKs is a Sudanese NGO providing training on various topics relating to
human rights and information technology.
[2]
See the Observatory’s Urgent Appeals SDN 001 / 0415 / OBS 033 and SDN
001 / 0415 / OBS 033.1, published on April 21 and May 18, 2015.
[3]
KACE aimed to develop democratic modes of behaviour, to encourage freedom of
thought and freedom of scientific research, and to reinforce peaceful and
civilized debate amongst different groups and sectors of the society.
Sudanese authorities shut down KACE in late 2012 on allegations of working
to topple the regime.
[4]
Previously the
charges included Article 65 “criminal and terrorist
organisation”, but on October 20, the Prosecutor did not require its
application and instead added Article 21 to the charges. Article 21 reads
“when an offence by two or more persons in execution of criminal
conspiracy between them, each of such persons shall be responsible for that
offence in the same manner as if it is committed by him alone, and shall be
punished with the penalty prescribed therefore”. Since the other
charges carry the death penalty, it is believed that this article could also
be used by the Court to hand down such a sentence.
[5]
See Opinions
adopted by the UNWGAD at its 76th session, 22-26 August 2016 available at:
http://www.ohchr.org/Documents/Issues/Detention/Opinions/Session76/34-2016.pdf.
[6]
The materials shown in Court were film documentaries, 41 pictures of one
taken during workshops or meetings and several personal pictures taken
during private time with friends.
[7]
In reality, these were forms for an International Criminal Court (ICC)
witness-protection programme run by the US Embassy.
[8]
The defence had to point out that this country does not even exist
anymore.