Background

On 31 August 2014, Federal Law No. 7/2014 for the purpose of countering terrorism (hereinafter “Counter-Terrorism Law”) was promulgated in the United Arab Emirates (hereinafter “UAE”). This law contains an overly broad definition of terrorism and lacks legal certainty, criminalising a wide spectrum of acts, including acts which fall under the right to freedom of opinion and expression, as well as freedom of peaceful assembly and association. In addition, the law provides for the detention of individuals in Munasaha centres on the basis that they appear to pose a terrorism threat, which in itself relies on the vague definition of “terrorism”.

“Munasaha” means “counselling” in Arabic. In practice, these Munasaha centres are being used to detain critics and activists, in particular those who have completed prison sentences handed for exercising their right to freedom of expression and peaceful assembly.

MENA Rights Group has received testimonies of 11 individuals who were originally sentenced under security-related legislation for exerting their rights to freedom of expression, opinion, and association. In each of the 11 cases, the individuals completed their prison sentences before being detained at the Munasaha centre of Al Razeen prison.

MENA Rights Group argues that (i) existing legislation empowers the Emirati authorities to hold individuals without legal basis, indefinitely, in Munasaha centres (ii) the authorities routinely fail to abide by due process guarantees when ordering the detention of individuals in Munasaha centres, and (iii) such Munasaha centres are effectively being used to detain critics and activists as a means of suppressing peaceful opposition to, and criticism of, the UAE authorities.

Munasaha centres

Legal basis for the creation of Munasaha centres

The legal basis for the establishment of Munasaha centres is article 66 of the Counter-Terrorism Law, which states that:

By a Cabinet Decision, one or more Munasaha Centres shall be established for the purpose of enlightenment and reform of persons convicted of terrorist offences or those are deemed to pose terrorist threat.

On 4 September 2019 a law was issued, by decree, providing for the establishment of a National Munasaha Centre (hereinafter “Munasaha Centre Law”).[1] Under this law, the mandate of the Munasaha centre exceeds that set out under the Counter-Terrorism Law and includes “the counselling and rehabilitation of holders of terrorist, extremist or deviant thought”.[2]

Grounds for detention in Munasaha centres

In accordance with UAE legislation, a person can be detained at a Munasaha centre on the grounds that they (i) appear to pose a terrorist threat,[3] or (ii) were registered to undertake a counselling programme – further to an application by said person or their guardian – but failed or refused, without justification, to complete the programme.[4] The definition of “posing a terrorism threat” is set out at article 40 (1) of the Counter-Terrorism Law, which establishes that “a person shall be deemed as posing a terrorist threat if said person adopts extremist or terrorist ideology to the extent that he/she seems likely to commit a terrorist offense.” However, the law is silent with regard to the threshold at which a person will be deemed “likely” to commit a terrorism offense, nor is it clear how “likelihood” of offending is assessed.

As a result, the Counter-Terrorism Law grants broad, discretionary powers to the authorities, does not uphold fundamental legal safeguards, and allows for the detention of individuals on vague grounds, thereby undermining the principle of legal certainty.

Counselling programmes

Under article 1 of the Counter-Terrorism Law, Munasaha centres are defined as “administrative units aiming at the enlightenment and reform of persons deemed to pose terrorist threat or those convicted of terrorist offences.” This implies that the centres are designed, both in their facilities, staffing and programmes, to rehabilitate individuals.

The Munasaha Centre Law establishes that counselling programmes are available for three categories of people; (i) those detained at the centre (the grounds for which are set out above), (ii) those currently serving prison sentences in relation to a terrorist crime, or in other criminal cases, and carry extremist or perverted ideas, and (iii) those who apply, in writing, either personally or through a guardian, requesting admittance to a counselling programme.[5]

In accordance with the law, counselling programmes for prisoners are implemented within the penal institutions in which the convict is serving his sentence, but under the supervision of the centre.[6]

However, in each of the cases documented, there was no evidence that detainees were provided with effective counselling or access to rehabilitation programmes. Instead, detainees were occasionally subjected to the broadcasting of national songs or encouraged to record a confession and / or a renouncement of ideology. Examples of former detainees who, during detention at Munasaha centres, agreed to make public recordings, is set out at clause 4.3.

Furthermore, the Emirati authorities have failed to publish information (i) detailing the types of programmes and support available at Munasaha centres, (ii) setting out what such programmes entail and the grounds on which they are provided, and (iii) explaining the method of ensuring rehabilitation.

Location of Munasaha centres

According to local sources, all Munasaha centres currently in existence in the UAE are located within prison complexes. There is no evidence that the facilities and infrastructure of Munasaha centres differ from the prisons in which they are situated. Indeed, in each of the cases documented, the individuals are detained in a wing of Al Razeen prison.

In 2019, the Munasaha Centre Law provided for the establishment of a National Munasaha Centre, with headquarters located in Abu Dhabi and with the power to open branches in any other Emirate. However, this centre has not yet opened.

Detention in Munasaha centres amounts to an arbitrary deprivation of liberty

Unclear nature of detainment

Both the Counter-Terrorism Law and the Munasaha Centre Law lack legal clarity with regard to the nature of detainment at a Munasaha centre. Article 1 of the Counter-Terrorism Law describes Munasaha centres as “administrative units”, however, article 8 of the Munasaha Centre Law describes detainees as persons “convicted as a terrorist threat”. It is thus clear that cases and appeals are considered before criminal courts. Should detention in Munasaha centres be considered administrative, we would like to recall that UN experts have established that “detention is arbitrary if it is based on counter-terrorism legislation providing for lengthy administrative detention and bypassing normal criminal justice processes and protections.”[7]

Similarly, whilst it seems likely that constituting a “terrorist threat” is an offence in itself under the Counter-Terrorism Law, we note that – should it be seen that detention in a Munasaha centre is intended as a form of preventative detention – it is clear that detention in Munahasa centres fails to meet international standards.

As aforementioned, all the cases documented by MENA Rights Group relate to individuals who previously completed sentences on the basis of their exercise of the rights to freedom of expression, opinion, and association. Furthermore, the cases documented indicate that there is no distinction between the Al Razeen Musasaha centre and the Al Razeen prison complex in which it is situated.

In light of this, we note that in Opinion No. 21/2015 (New Zealand), the Working Group on Arbitrary Detention (hereinafter “WGAD”) stated that “the conditions of preventive detention regimes must satisfy demanding proportionality requirements and establish a difference between the regimes for preventive detention and for ordinary prison sentences.”[8] In the event that detention in Munasaha centres is deemed “preventative”, we assert that it fails to meet proportionality requirements and fails to distinctly differ from a prison sentence.[9]

Lack of legal basis and use of Munasaha centres to de facto continue detention following completion of sentences

It is notable that, in each of the 11 cases documented, the individuals were due to be released, having completed sentences at Al Razeen prison for security-related offences, prior to their detention in Al Razeen Munasaha centre, which is based within the prison complex.

Based on information available relating to their previous activities and convictions, it is clear that they are currently being detained at Al Razeen Munasaha centre in relation to their previous opposition to, and criticism of, the State.

To this regard, we note that the Human Rights Committee has previously found detention to be arbitrary in the event that it is “in pursuance of a law which characterises [the individual’s] continued incarceration under the same prison regime as detention.” [10] Furthermore, we note that in instances where a court orders the detention of an individual because it is feared that they might be a danger to the community in the future and for purposes of rehabilitation, the State is required to demonstrate that the individual’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention.[11]

In the cases documented, having completed their sentences, their continued detention in the Munasaha centre of Al Razeen prison most likely violates the rule of double jeopardy.

Ambiguous detention periods

The Counter-Terrorism Law does not explicitly require the court to determine the duration of detention at a Munasaha centre for individuals considered as “terrorist threats”, nor does it explicitly require that that any detention order be renewed. Instead, in accordance with article 40 (3) of the Counter-Terrorism Law and article 11 of the Munasaha Centre Law, the Munasaha centre must submit to the prosecution a periodic report on each person detained at the centre every three months. The prosecution then submits the report, along with its opinion as to whether or not it deems that said person is likely to commit a terrorist offence, to the court. The law then states that it is then the responsibility of the court to order the release of the person, should it find that his/her condition so allow.

Notwithstanding the above, article 8 of the Munasaha Centre Law suggests that there is a requirement for a detention period to be specified, asserting that it is not permissible to keep detainees after the expiry of the period specified in the initial judgement, unless another ruling is obtained. However, we note that at least three detainees have spent over three years in a Munasaha centre, suggesting that, regardless, detainees are at risk of prolonged detention as a result of existing practices.

To this regard, we note that several UN Special Procedures mandate holders have asserted that “a person may only be deprived of liberty in accordance to procedural safeguards governing detention and if this detention is not arbitrary in the sense of being inappropriate, unjust, unreasonable, or unnecessary” and that “essential procedural rules entail limits established under national law on the duration of detention and rules governing the process for authorizing detention and continued detention.”[12]

In light of this, we conclude that the Emirati authorities are violating the rights of detainees under articles 3 and 9 of the UDHR.

Violation of due process guarantees

Right to be brought before a judicial authority and right to habeas corpus

Detention in a Munasaha centre is ordered by a judgment of a court with jurisdiction over state security offences, upon the state security prosecution’s request.[13] The Munasaha Centre Law clarifies that, where applicable, the Juvenile Court also has the competency to issue the judgement.

Under UAE law, there is no requirement that a detainee be brought promptly before a judge.[14] Both the Counter-Terrorism and Munasaha Centre Laws are silent with regard to the rights of detainees to appear before the court prior to the deliverance of any judgement. Furthermore, there is no limit as to how many times a judge may renew a detention order.

Our research indicates that the majority of the individuals whose testimonies we obtained have not had the opportunity to appear before the court in relation to the judgements to detain them on the grounds that they still posed a “terrorism threat”. In addition, we have been informed by local sources that the majority of the individuals were not presented with said judgements prior to their detention at Al Razeen Munasaha centre.

In light of this, it appears that detainees at Munasaha centres are being deprived of their right to challenge the legality of their detention before an independent judicial authority and to be recognised as persons before the law, in violation of articles 14(6) and 22 of the Arab Charter and further violates articles 26 and 28 of the Constitution of the UAE[15] which enshrine the right to personal liberty and the presumption of innocence.

Right to defence and access to legal assistance

Article 280 of Federal Law No. 35/1992 concerning the Criminal Procedural Law (hereinafter “Criminal Procedures Law”) asserts that all defendants have the right to be represented by an attorney.[16] Furthermore, under article 160 of the Criminal Procedures Law, anyone facing accusations, for which the penalty is detention, must appear before the court in person.[17]

Our research indicates that several of the cases documented involve individuals who have never been brought before a court to present a defence in relation to their current detentions. Furthermore, at least nine individuals have been denied access to legal counsel for the duration of their detention at Al Razeen Munasaha centre. In addition, despite the requirement that the detentions be considered by the court every three months, neither the individuals nor their legal counsel have been provided with the evidence presented by the prosecution to the court, nor have they been provided with the opportunity to challenge any decision not to authorise their release. In light of this, we conclude that the Emirati authorities are violating such individuals’ rights under articles 10 and 11 (1) of the UDHR, article 16 of the Arab Charter, and principle 9 of the Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court.

Right to appeal

Article 230 of the Criminal Procedures Law sets out that the judgement of a court of the first degree may be appealed.[18] In two of the cases documented, the detainees were able to appeal the orders for their detention, with both appeals taking place in 2017. However, for the remaining nine cases documented, the majority of which involved transfers to the Munasaha centre between 2018 and 2019, there have been no appeals. We are concerned that the lack of appeals after 2017 suggests that the more recent detainees are being denied their right to appeal, in violation of article 230 of the Criminal Procedures Law, article 8 of the UDHR and article 16(7) of the Arab Charter.

Use of Munasaha Centres to suppress criticism and opposition

Broad and vague counterterrorism legislation

As previously set out, a person can be detained in a Munasaha centre on the basis that they constitute a terrorist threat, namely that they hold terrorist ideologies and are deemed “likely” to carry out a terrorist offence. As a result, it is particularly concerning that the Counter-Terrorism Law contains an overly broad definition of “terrorist offence”, which has enabled it to be repeatedly used to prosecute people solely for exercising their rights to freedom of expression, association, and peaceful assembly. With regard to this, we note that the United Nations Special Rapporteur on counter terrorism stresses that such offences need to be clearly defined to ensure that they do not lead to disproportionate interference with freedom of expression.[19] In addition, we recall that, for legal certainty to be established, laws must be accessible and clear, with sufficient precision that an individual can regulate their conduct.

In accordance with article 1 of the Counter-Terrorism Law, a “terrorist offence” is defined as:

“every criminal action or inaction criminalised under the [Counter-Terrorism Law] and every action or inaction constituting a felony or misdemeanor referred to in any other law, if committed for terrorist purpose.”

This is problematic as several articles of the Counter-Terrorism Law fail to meet international standards, and several offences under the law fail to meet the three cumulative elements for establishing a genuine terrorism offence.[20]

Moreover, article 14 of the Counter-Terrorism Law considers, as a terrorist offence, any act which threatens “the State’s stability, safety, unity, sovereignty or security, which contradicts the basic principles underlying the governance system of the State.” Similarly, article 15 states that “temporary imprisonment shall be imposed on whoever declares, by any means of communication, his opposition to the State, or to the ruling system therein or his non-allegiance to its leadership.” These provisions are overly broad and include non-violent conduct, allowing for the conflation of any public criticism, or opposition, with terrorism. With regard to this, we note that the United Nations High Commissioner for Human Rights has previously emphasised the risk of human rights violations when the terms such as “extremism” are used to cover non-violent activity, asserting that “States should ensure that the focus of their measures is on actual conduct, rather than mere opinions or beliefs.”[21]

Furthermore, chapter 2 of the Counter-Terrorism Law sets out a range of offences in relation to terrorist organisations. This is particularly concerning as the definition of “terrorist organisation” relies on the vague and broad definition of “terrorism offence”.[22] In light of the fact that a terrorism offence could entail “threatening the unity of the State” in the form of peaceful criticism or political activism, the Counter-Terrorism Law subsequently qualifies as a “terrorist organisation” any group of persons assembling for the purpose of advocating for change, establishing an opposition party, or simply constituting a group of people with ideologies contrary to the status quo. The breadth and vagueness of the definition of “terrorist organisation” is rendered even more concerning due to the severity of the penalties, which include capital punishment or life imprisonment for anyone who establishes a terrorist organisation,[23] and imprisonment for joining a terrorist organisation.[24]

In addition, certain articles impose disproportionate sentences, such as article 34 (1),[25] which imposes a prison sentence of up to 10 years for anyone who knowingly supports a terrorist organisation, person or offence, by any means.

Examples of use of counterterrorism legislation to silence peaceful dissent

The UAE has repeatedly used its counterterrorism legislation to detain critics, opposition leaders, and human rights defenders. High profile examples of this crackdown include the “UAE94” case, whereby 94 government critics and activists, including prominent human rights defenders, judges, academics, and student leaders, stood trial en masse on the charge of establishing an organisation (the Al Islah group) that “aimed to overthrow the government”, a charge which they all denied. The sentences in relation to the UAE94 case were handed in 2013, despite the fact that the Al Islah group was not designated a “terrorist organisation” by the UAE until 7 March 2014. In relation to the cases of 61 of the defendants, the UN WGAD issued Opinion No. 60/2013,[26] stating that the arrest and detention of the defendants resulted from the exercise of their rights to freedom of opinion and expression and to freedom of peaceful assembly and association, that it lacked legal basis and that there had been a violation of the right to a fair trial.

In light of the UAE’s use of counterterrorism legislation to silence peaceful critics, it is important to note that each of the cases documented involved individuals who had previously served sentences for non-violent offences related to the exercise of their rights to freedom of expression and peaceful assembly. Five of these individuals were originally sentenced as a part of the UAE94 case. A further three were convicted for their membership to the Al Islah Charity Committee, whilst two were convicted in relation to their membership of, and contribution to the functioning of, Al Islah. Finally, one individual was originally arrested in relation to his online expressions of support for the UAE94 prisoners, which the WGAD declared amounted to arbitrary detention in Opinion No. 12/2014.[27]

Use of Munasaha centres to detain critics, opposition figures and activists

As set out above, the Counter-Terrorism Law de facto grants the authorities broad and discretionary powers to detain individuals such as critics, opposition leaders, and human rights defenders, at Munasaha centres on the grounds that they pose a “terrorism threat.”

Based on information available relating to their previous activities and convictions, it is clear that they are currently being detained at Al Razeen Munasaha centre in relation to their previous opposition to, and criticism of, the State. As a result, their cases exemplify how the Emirati authorities are using these rehabilitation centres to extend the detention of individuals who previously exercised their right to freedom of expression and opinion, and freedom of peaceful association and assembly.

Furthermore, we note with concern that there are examples of previous Munasaha detainees, including Osama Al Najar, a blogger and human rights defender in relation to whom a communication was sent to the UAE by the WGAD,[28] making confessions and repenting in televised recordings, including a recording titled ‘العائدون الى حضن الوطن’ (“Returning to the bosom of the homeland”).[29] It is our concern that the Emirati authorities established a system whereby a confession and repentance, possibly public, is required from individuals detained at Munasaha centres before the prosecution will provide a recommendation for release.

Conclusion

Our research indicates that Munasaha centres in the UAE are not aimed at counselling or rehabilitating individuals but, instead, are used to enable the detention of individuals de facto indefinitely, on broad and vague grounds.

The establishment of Munasaha centres, and the grounds for detention, rely on the Counter-Terrorism Law and Munasaha Centre Law, which lack legal certainty and fail to meet international standards. In addition, the Counter-Terrorism Law is regularly used by the UAE to silence and supress any peaceful form of opposition and criticism. In practice, individuals are being detained without the opportunity to present a defence, obtain legal representation and, in all likelihood, appeal. As a result, there appears to be a systematic violation of such detainees’ rights to due process and legal representation, amounting to an arbitrary deprivation of liberty.

Furthermore, evidence indicates that the authorities are using Munasaha centres to detain peaceful opponents, critics and activists, in order to ensure a culture of silence. In particular, the documented cases demonstrate that Munasaha centres are being used to effectively prolong the detention of individuals who previously served sentences as a result of exercising their right to freedom of expression and opinion, and freedom of peaceful association and assembly.

As a result, we conclude that in each case documented, the individuals are currently being detained in the Munasaha centre of Al Razeen prison in violation of their right to freedom of expression and opinion, and freedom of peaceful association and assembly under articles 19 and 20 of the UDHR.

Annex

Selection of cases of individuals detained in Munasaha centres, UAE, May 2020