“Terrorism” charges do not permit torture and breach of fair trial guarantees

By Hiba Abu Taha

Hit by sun at times, and in distress for his father at other times, standing in a sit-in with others who share his tragedy infront of Husseini Mosque in downtown organized by Committee for the Defense of Detainees (….). Trying to ease his frustration and anger for what happened to his 60 year old father.

In the midst of the sit-in by families who have been deprived of a family member, young man “ Mahmoud Mohammed” says “Allah Akbar on the unjust­, ill-gotten by them” then his voice starts to raise with anger whilst telling us what happened with his father, who was tortured at General Intelligence Department GID upon his arrest on charges of promoting for terrorist groups, whereas they have electric shocked his ill body without taking into account his health conditions and age.

On the other side, Mohammed preventing his tears from falling in sigh for his son Samer, who became emaciated after being physically assaulted by GID, father complained to Midan “They kidnapped my son from me, they kidnapped him unfairly”. Last March his son was sentenced to six years of temporary penal labour after being convicted of promoting to terrorist groups. Father recalls last year when his son Samer called him and informed him that he was deported from GID to Mowaqqar Prison 2, where his father rushed to see his son to be shocked by how his son became.

Violations and Assaults

Mohammed tells us what happened to his son back then “ I was shocked when I saw him emaciated, for he lost more than 15 kgs of his weight due to torture he was subjected to. I found a devastated broken young man, who was separated from me by glass screen, listening to him via phone and holding my tears from erupting while he was telling me with sorrow how he was insulted by GID where they were pulled him and hit him in abdomen”

This report reveals violations of fair trial guarantees, serious assaults of torture and ill-treatment of those charged with offenses under the Prevention of Terrorism Act

The reporter was able to obtain files of ninety cases, after reading them, turned out that forty-nine cases had conclusive decisions by the Court of Cassation concerning fifty-eight persons between 2016 and February 2017.

The study sample included detainees on the following charges: promoting a terrorist group, joining armed and terrorist group, using internet to promote a terrorist group/organization, attempting to join armed and terrorist groups, helping people to join armed and terrorist groups

 

GID Cells

Ahmed summarized the fifty days he spent in GID cells to his father by saying “Father, if they have told me I sold Palestine, I would say I have” , whereas according to his father he was subjected  to ill-treatment and sever beating for 50 days.

During his last semester at university Ahmed was sentenced to six years of penal labour in Muwaqqar 2 prison after being convicted of promoting to terrorist group “ISIS”.

In order to identify the violations against detainees in the study sample, we monitored the reasons for the cassation presented by the lawyers in order to appeal the judicial decisions issued by the State Security Court. Emphasizing on violations within GID, The percentage of violations exctracted by the reporter after investigating lawyers appeals to overturn sentences are as follow:  Physical or mental torture of defendant  69 %. Extracting confession through coercion 52%. Ill-treatment 69%. Extracting confession by deception 3%.  Unlawful procedure of interrogation and circumstances surrounding defendants’ testimony 71%. Deprived from freedom 24% falsified testimony 2%.

Call to ban torture

The Special Rapporteur on the promotion and protection of human rights and freedoms in the context of counter-terrorism stressed the prohibition on the torture of terrorist suspects when they were arrested and interrogated in his sixth annual report, issued in 2010, said in the report, “The prohibition of torture or other cruel, inhuman or degrading treatment is the right Absolute and non-derogable and shall apply to the treatment of any person under the authority or effective control of the State. Such treatment shall not be justified under any circumstances”.

 

In an article in the Al-Ghad newspaper titled “ISIS, National Industry”, the researcher on the affairs of Islamic groups, Mohammed Abu Rumman, called the need to differentiate between two things; sympathy with this stream, and the failure to accept the legitimacy of torture and the violation of arrests and infringement of the rights of these young people.

It is necessary to distinguish between the different cases, according to the impact and influence of this stream, not to be considered as one, or to be tortured and have their human rights violated, which leads to strengthening the extremist stream, not the other way around,” says Abu Rumman

Lawyer Abdul Qader Al-Khatib, who defended several cases of detainees under the Terrorism Prevention Law, agrees with Abu Rumman. “If the young does not support ISIS, he will support them after being tortured” explaining that “Injustice initiates violence, and it is an expected reaction after what they go through”.

In the same context, Abdel Jabbar tells us of his and his family suffering after his son Ahmad was tortured in GID, whereas he lost his memory after spending more than a month in the department. As said by Abdul Jabbar

“He continued “I am sure that my son was tortured inside GID. When I visited him in prison bruises from beating were clear, in addition to that he was unable to identify me, his mother and his siblings. Unfortunately Ahmed has totally list his mind”

In the forth pillar of its Counter-Terrorism Strategy the United Nations focused on the need to respect human rights in conjunction with the fight against terrorism “reaffirming that the promotion and protection of human rights for all and the rule of law is essential to all components of the Strategy, recognizing that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing, and stressing the need to promote and protect the rights of victims of terrorism. Stressing that international cooperation and any measures taken by Member States to prevent and combat terrorism must fully comply with their obligations under international law

Former Member of Parliament Mahmoud Al Kharabsheh refers to Article 8 of the Jordanian constitution, which prohibits torture and abuse at time of arrest, and calls for holding accountable those who are behind the torture of detainees or any derogation from their dignity

Families of detainees, expressed to the reporter about the detainees’ fear of disclosing their torture during their in GID to any person or entity

Lawyer Al Khatib confirmed detainees fear of disclosing the torture they were subjected to in GID, said “ When families or even lawyer visit those detainees, a staff member GID attends the meeting, in addition to that they get warned before the visit not to mention that they have been tortured”

He pointed out that his clients told him that they were tortured after being deported to Muwaqqar 2 prison. When asked them why they have denied these claims when they were asked while they were still in GID, they replied: “They told us if you tell your lawyer that you were beaten, we swear to God we shall hang you in the yard”

Impunity

Article 208 of the Jordanian Penal Code, in its first and second articles, “Whoever commits any kind of violence and severity prohibited by law with intention to extract a confession of a crime or information about a crime shall be punished by imprisonment from three months to three years. And if these actions led to a disease or injury punishment shall be from six months to three years unless they require a more severe punishment”

Lawyer Leen Khayyat claims “Torture actions are difficult to prove, for people are detained for long period of time without being allowed to meet anyone”

This was confirmed by the families of the detainees during their interview with the reporter. They informed us that GID held their tortured sons in custody without being deported to prison until bruises of torture disappeared.

Article 159 of the Jordanian Code of Criminal Procedure stipulates that “the statement made by the accused or the defendant in a non-presence of the General Prosecutor and in the conduct of an offense shall be accepted only if the prosecution presents evidence of the circumstances in which the court is satisfied and the defendant or the accused or the complainant confessed voluntarily and selectively”

Al Khayyat considers that the legal application made pursuant to Article 159 is insufficient, for a simple reason that “When the person who controls the testimony is asked if the defendant has been beaten or forced to confess” the response will always be negative’.

Amnesty International considers that the most important reason for “Executioners not to fear being arrested, prosecuted or punished” is “lack of political will, especially when the government is behind torture, co-workers’ supervision of relevant investigations, not considering human rights as top priority of the political agenda and the efforts of Governments to deny torture or cover-up to perpetrators rather than to conduct full investigations when filing a complaint about it”

In the same context, “the incident of beatings and assaults on Mohammad was proved by witnesses who saw the beatings marks at the interrogator and the testimony of his brother, who confirmed the existence of bruises of beatings on his body even after a period has passed of his detention, as well as witnesses in Al-Muwaqqar prison 2, confirming this and the same sites of torture and beatings “According to the claim of his lawyer Musa Al Abdallat before the Court of Cassation in case No. 1868/2016, in which he  appealed to the decision of the State Security Court No. 5671/2016 to put Mohammed in penal labour for five years after being convicted of the crime of trying to join armed groups and terrorist organizations

The Court of Cassation response to the lawyer’s claim of torture of Mohammed and the exclusion of state security from the testimony of his brother and others who saw the marks of beatings on him was that the Public Prosecution provided proof of the validity of a confession, especially the clear and explicit confession of the accused to by hearing the witness of the testimony witness Captain /Hussein, who claims that the accused gave his testimony voluntarily and without pressure or coercion

According to the study sample, the responses of cassation were limited to 69% of those whose lawyers claimed that their defendants were tortured received same response as in the case of Mohammed. Sometimes the cassation in its response claimed that the Public Prosecution provided proof of the validity of the confession and that it was not by coercion, without referring to the evidence presented.

Al Khateeb confirmed that the evidence presented to prove the torture of detainees is not taken into account and is based solely on the evidence of the investigator. He pointed to the court’s rejected his request to refer his client to forensic to prove torture bruises in which Al Khateeb has seen on his client.

In his report, the Special Rapporteur on the promotion and protection of human rights and freedoms in the context of the fight against terrorism referred to the need for States to take effective measures to prevent, detect and prosecute torture and other inhumane treatment when discovered and should include, , Permanent video recording of what is happening in all interrogation rooms in a manner that does not allow pausing or erasing the recording, and not to use information obtained by coercion or other cruel, inhuman or degrading treatment or punishment, wherever it occurs. ”

The legal advisor of Lawyers Without Borders, Attorney Moath Al Momani comments on the aforementioned “It is common in criminal jurisprudence that Judge refers to his conscience in the dispute before him and does not comply with the rules available to the civil judge. It is in his conscience that he decides upon general rules”

Combating Torture by State

The State Coordinator for Human Rights Basil Al Tarawneh stresses that the Jordanian state is making extensive efforts to combat torture and protect human dignity through the recent decision to allow the National Center for Human Rights to conduct undeclared visits to GID detention centers in addition to the comprehensive National Human Rights Plan , Set up by the Government for implementation over a ten-year period, to strengthen legal protection against torture and hold perpetrators responsible.

Amnesty International’s opinion in its annual report on the human rights situation of 2016/2017 stated that “The government’s 10-year national human rights plan listed objectives that included strengthening legal protections against torture and increasing prosecutions of and “sanctions” against perpetrators of torture, but it was not clear that any such reforms were made in 2016. Cases of police officers accused of torturing detainees continued to be handled by special police courts whose proceedings were neither independent nor transparent.”

Fair Trial!

Civilians still appear before the State Security Court the fact that the Human Rights Committee expressed its concern in the concluding observations of the Fourth Periodic Report of Jordan on the lack of independence of State security, both in terms of organization and work, as a court lacking independence and impartiality by the Working Group on Arbitrary Detention Of the Human Rights Council in its report No. 39/2016.

According to the study sample investigated by the reporter, the allegations of violations of fair trial guarantees percentages are as follows: rejection / exclusion of defense evidence 69%, failure to take into account the weighted mitigation of 50%, disregard for the health or psychological state of the accused 12% the absence of a defending lawyer of the accused at the prosecutor and the court 10%, the absence of a confession of the accused in GID and the court and any at any mean of investigation 3%, raising the penalty from the minimum without explanation 24%, not to count the duration of detention 3%

“Such violations affect the fair treatment of the accused” said lawyer Al Khateeb.” One of the most prominent cases I have defended, was accusing my client of promoting to ISIS, because he follows a Shiite website.

In detail, the state security did not take the defense evidence that proves the innocence of his client Zakaria. According to the file of case 1278/2016, the prosecution and the state security prosecution stated that he is guilty of “supporting and promoting for ISIS” and he used to login to ISIS website (Darwaza) which broadcasts the operations of ISIS and their statements and the accused discuss those operations and statements with people in public”.

The Court of Cassation did not appeal the decision despite evidence based on Zakaria’s innocence, which is the site of Darwaza, in which the prosecution and state security considered a site to promote ISIS, a secular Shiite and anti-state organization. According to Al Khateeb

According to the sample, the lawyers’ claims of exclusion or rejection of the defense evidence amounted to 69%, despite the fact that there was a decision to appeal No. 256/98, stating that “the failure of the court to show defense evidence cancels the role of this evidence, which constitutes a breach of defense rights, The court relied on the conviction of the accused and sentenced him due to his confession

The right to appoint a lawyer

Article 14 of the International Covenant on Civil and Political Rights (ICCPR), in its third part, guarantees the defendant right to “legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”

Lawyer Al Momani affirms this right and considers it a guaranteed right under the International Covenant ratified by Jordan, even if the laws in Jordan do not determine its right to do so.

 

However, the responses to the lack of representation of a lawyer to defend the accused in cases of terrorism were “that the offense assigned to the accused is not a crime that requires the presence of a lawyer to defend him before the court, which requires the response of this reason”

The Special Rapporteur on the promotion and protection of human rights and freedoms in the fight against terrorism also stressed in his report the right to appoint a lawyer when arresting terrorist suspects. “Persons detained or held in custody must have access to a legal adviser of their choice and be informed of this right”

The Director Adel Justice Center for Legal Aid Hadeel Abdel Aziz, draws attention to the UN resolution on the early use of a lawyer for criminal cases from the moment of arrest, as well as other guarantees guaranteed by treaties such as the right of communication and knowing the charge against the detainee

Whose decision is it?

According to the sample, we monitored the judicial decisions issued by the State Security and approved by the court of cassation, in terms of frequency and variation in the rulings issued on the charges included in the sample. Attached in info graph

Lawyer Tahir Nassar, who has defended several cases of detainees under the Prevention of Terrorism Law, explained this disparity by issuing judgments due to influence of security services ‘intervention in the decision. “These sentences are unfair because they are not equal, for example, when a defendant is sentenced to eight years’ imprisonment, Such as the promotion of a terrorist group, refers to the absence of equality for the implementation of the instructions of the Security Service.

For his part, lawyer Khateeb believes that the lack of equality of sentences is also due to the reactions to terrorist groups operations in Jordan. Giving an example of raising the ruling for promoting of  terrorist groups to 8 years after Karak operation.

In the same context, the Court of Cassation did not overturn the decision of the state security except in one of the judicial rulings in the sample. In the State Security Decision No. 5399/2015 against Mohammed, the State Security Court did not justify the reason for the increase in sentence from the minimum, making its decision is subject to veto from court of cassation

According to the sample, the violation of raising the penalty for the minimum without explanation and frequency was 24%, and was not overturned by the court, despite the attempt of the lawyer Musa Al Abdallat, based on the jurisprudence of discrimination in the sentence in the case of Mohammed without justification for raising it, in case No. 1868/2016, but his attempts failed

In the same context, the court did not take 50% of the estimated mitigation reasons in the same manner. The court of cassation in its responses considered that the reasons for being a young man and his confession before the interrogator, being a member of a poor family, And that he is not a former convict, or the sole breadwinner of his family are not justifications mitigating reasons

Although it is customary in some cases, that mitigation measures are age and good conduct of the behavior, sole breadwinner of his family, but often if he is of young age or what the court deems appropriate, according to the lawyer Al Momani.

It is clear that the State Security Court took 25% of the total number of defendants in the study sample to account for the mitigating reasons, and explained the reasons for the reduction of the sentence “given the circumstances of the case to give him an opportunity to reform himself”

Official reservation

On June 6th , we sent a letter to the Directorate of Public Security to approve our request to interview officials responsible for the file of terrorism suspects in the Directorate, to respond to our inquiries contained in the report, but our request was rejected as reported by a security source

We tried to communicate with the official spokesman of the government, Mohammed Al Momani, but he did not respond to our contacts in order to obtain an official response

Families are still waiting for justice for their children, eyes on the expected justice, and what will be nominated for an international response to Jordan in the 121  session of the fifth periodic review of Jordan on the International Covenant on Civil and Political Rights, which will discuss the situation of Jordan in the fight against torture in its legislative system and its applications within current month of October.

This story was published on AmmanNet news website: https://bit.ly/2yCqBwK 

*Supported by Journalists for Human Rights  Organization (JHR) 

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