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 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.