The International League Against Arbitrary Detention urges the Government of Kuwait to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 28/2023 concerning Bachar Kiwan starting for the Government of Kuwait to immediately and unconditionally release Bachar Kiwan and to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Bachar Kiwan: Opinion No. 28/2023.
UNLAWFULLY ARRESTED AND SUBJECTED TO SECRET DETENTION
Bachar Kiwan is a dual French-Syrian national, born on 30 November 1966 in Kuwait. Mr. Kiwan launched and presided over a press group project in Kuwait named Al Waseet International, which grew quickly in the Gulf region. Mr. Kiwan is the majority shareholder in the Al Waseet International group, where various members of the Kuwaiti royal family also own shares. In 2016, the Kuwaiti royal family reportedly used the State security apparatus to dismiss Mr. Kiwan from the company and expropriate his holding, while violating his fundamental rights in order to use the group for large-scale embezzlement.
Mr. Kiwan was arrested on 2 November 2017 on the premises of his company by six individuals in plain clothes. Reportedly, he was not shown an arrest warrant or given an explanation of the reasons for his arrest. The Government later claimed that Mr. Kiwan was arrested pursuant to a judgement of 1 November 2017, sentencing him to five years’ imprisonment with hard labour, deportation from the country and confiscation of forged documents. The Working Group found that the existence of this judgement did not absolve the authorities of their obligations to present him with a document ordering his detention and to inform him of the reasons for his arrest at the time of the arrest. The Working Group concludes that the Government violated Mr. Kiwan’s rights under articles 3 and 9 of the Universal Declaration of Human Rights and article 9 (1) and (2) of the Covenant and acted contrary to principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
Following his arrest, Mr. Kiwan was detained at the premises of the secret services, in an undisclosed location, for almost 50 days, during which he was not brought in before a judicial authority. The Working Group found this to be a violation of article 9 (3) of the Covenant. During the first week of his detention, Mr. Kiwan was unable to communicate with anyone, in violation of the right to challenge the lawfulness of his detention before a court under article 9 (4) of the Covenant Given that Mr. Kiwan was unable to challenge his detention before a court, his right to an effective remedy under article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant was also violated. He was also placed outside the protection of the law, in violation of his right to be recognized as a person before the law under article 6 of the Universal Declaration of Human Rights and article 16 of the Covenant.
Consequently, the Working Group found that the Government failed to establish any legal basis for Mr. Kiwan’s detention, rendering it arbitrary under category I.
SUBJECTED TO BLATANT VIOLATIONS OF HIS RIGHT TO A FAIR TRIAL
During his secret detention, Mr. Kiwan was repeatedly interrogated without a lawyer present. Despite rebuttal by the government, the Working Group considers that the source established a prima facie case that Mr. Kiwan was denied his right to legal assistance, in violation of article 14 of the Covenant. Further, between September 2016 and November 2017, Mr. Kiwan’s lawyers were pressured by the authorities to stop representing him and withdraw from his case, including the prosecution and sentencing to three months in prison of two of his lawyers on the grounds that they had damaged the name and reputation of a member of the royal family due to the publication of a press release recounting the lawsuits against Mr. Kiwan. The Working Group found these acts to be in violation of articles 10 and 11 of the Universal Declaration of Human Rights and article 14 (3) (b) of the Covenant.
During his questioning by the secret services, Mr. Kiwan was reportedly tortured and subjected to inhumane treatment in order to force him to disclose his professional and private passwords which were later used by the prosecution against Mr. Kiwan. The Working Group found that Mr. Kiwan was subjected to treatment contrary to the absolute prohibition of torture, which is a peremptory norm of international law, to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to principle 1 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and to rule 1 of the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Further, regarding the use of answers given in the absence of legal representation and obtained through torture or ill-treatment the Working Group finds that the authorities violated Mr. Kiwan’s right not to be compelled to confess guilt under article 14 (3) (g) of the Covenant and his right to a fair trial under article 14 of the Covenant and article 10 of the Universal Declaration of Human Rights.
Mr. Kiwan did not benefit from the right to be heard before an independent and impartial tribunal, as the judgment of 1 November 2017 was politically motivated and rendered by an inefficient court lacking independence. The same judges were also involved in three of the five judgments against Mr. Kiwan, with two of these judgments related to similar charges, namely the forgery of various documents. During the legal proceedings, Mr. Kiwan’s lawyers were prosecuted and sentenced to three months’ imprisonment and a fine. These events led the Working Group to find that Mr. Kiwan was deprived of his right to be heard by an independent and impartial tribunal, in violation of article 14 of the Covenant.
In light of the above, the Working Group concludes that the violations of Mr. Kiwan’s rights to a fair trial were of such gravity as to render his detention arbitrary under category III.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Bachar Kiwan was arbitrary and fell under categories I and III because his deprivation of liberty was in contravention of articles 3, 6, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 9, 14 and 16 of the International Covenant on Civil and Political Rights.
The United Nations Working Group on Arbitrary Detention recommended that the Government of Kuwait take the steps necessary to remedy the situation of Bachar Kiwan without delay and bring it into conformity with the relevant international norms, starting with his immediate release and accord him an enforceable right to compensation and other reparations.
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