Nasheed v Maldives

• Jurisdiction: Derecho Internacional
• Judgment Date: 04 April 2018
• Docket Number: (Communication Nos 2270/2013 and 2851/2016)
• Court: United Nations Human Rights Committee

United Nations Human Rights Committee.2

(Communication Nos 2270/2013 and 2851/2016)

Nasheed

and

Republic of Maldives 1

Human rights — Fair trial — Freedom of association — Participation in elections — Right to be elected — International Covenant on Civil and Political Rights, 1966 (“ICCPR”) — Whether detention, sentence and conviction of former president of the Republic of Maldives violating ICCPR Articles 14, 22 and 25 — United Nations Human Rights Committee

Summary:3The facts:—The author, a former president of the Republic of Maldives (“the State”) and leader of the Maldivian Democratic Party (“MDP”), filed a complaint before the United Nations Human Rights Committee, arguing that his arrest, detention, trial and conviction on charges of terrorism violated his rights to a fair trial, freedom of association and political participation under Articles 14, 22 and 25 of the International Covenant on Civil and Political Rights, 1966 (“ICCPR”).

The author, who served as president from 2008 to 2012, was elected to office during the State's first democratic presidential elections. The author submitted that in 2009, after the State's first democratic parliamentary elections, supporters of the defeated former president gained a majority of parliamentary seats. He also stated that his administration tried to implement democratic reforms, but that its efforts were obstructed by an unreformed judiciary, which remained in place due to the influence of judges allied to the former president.

The author submitted that in 2012, the Maldives National Defence Force (“MNDF”) detained the Chief Justice of the Criminal Court on allegations of grave misconduct, heightening tensions between the executive and the judiciary. He argued that the opposition used the incident to spread false claims that the Chief Justice had been detained on his orders, as Commander-in-Chief

of the MNDF. He stated that the detention of the judge caused civil unrest, and that on 7 February 2012, he was forced to resign amid the unrest and threats of violence from members of the police and the army loyal to the former President. In October 2012, the author was arrested while campaigning, and charged with an abuse of power under Article 81 of the Penal Code for allegedly ordering the detention of the judge. He was later released.

The Judicial Service Commission (“JSC”) established a special court within the Magistrates' Court and appointed three special judges to conduct the author's trial. The author maintained that the JSC was controlled by government parties and individuals loyal to the government. He filed an application before the High Court of Maldives, arguing that the Magistrates' Court was unlawfully constituted and that the bench had been set up in an arbitrary manner. The Supreme Court concurrently issued judgment in a different, ongoing case concerning the legality of the Magistrates' Court. It held that the Magistrates' Court was established in accordance with the law and could operate as a court of law.

The author's applications before the High Court and, later, the Magistrates' Court, requesting the adjournment of proceedings until after the presidential elections in November 2013 were denied. His campaign-related travel requests to the Magistrates' Court and government agencies were also denied. The proceedings were eventually suspended in July 2013, when the presidential candidates were announced. The elections were held in November 2013, and the author narrowly lost.

In February 2015, the Prosecutor General requalified the charges against the author as an offence of terrorism under Section 2(b) of the Prevention of Terrorism Act 1990. The author was arrested on the new charges, and his trial began the following day.

The author argued that the Criminal Court did not observe due process. He stated that his lawyers were barred from attending the first day of his trial because of a two-day requirement for registration of counsel and that a ten-day extension request to allow his lawyers to prepare his defence was summarily dismissed. The author maintained that the prosecution evidence, which was withheld until presented before the Court, neither demonstrated that he had ordered the Chief Justice's detention nor that it constituted a crime of terrorism. The author stated that he was not allowed to call defence witnesses, had limited opportunity to cross-examine prosecution witnesses and that, in March 2015, his lawyers withdrew from the case out of concern for violating professional responsibility rules.

Within three weeks of the trial, the author was found guilty of terrorism and sentenced to 13 years' imprisonment. He alleged that he indicated his intention to appeal but the Criminal Court withheld the trial records until after the deadline to file an appeal had passed.

In March 2015, parliament passed the Amendment to the Prison and Parole Act, which barred prisoners from holding leadership positions in political parties.

On his own motion, the Prosecutor General filed an appeal before the Supreme Court on the author's behalf. The author also filed an appeal. The author submitted that the Supreme Court only heard the Prosecutor General's appeal, and confirmed his conviction.

The author submitted that, due to international pressure, he was released from prison on medical leave in January 2016. He was allowed to travel to the United Kingdom for treatment where he was granted political asylum. He subsequently filed a complaint before the Committee, stating that he had exhausted local remedies.

The author argued that the original abuse of power proceedings violated his right to fair trial under Article 14 of the ICCPR because the proceedings were politically motivated, the Magistrates' Court was not independent, and the bench of judges constituted to hear his case was established arbitrarily and the JSC highly politicized. He further argued that the Supreme Court's decision regarding the legality of the Magistrates' Court was invalid because the deciding vote was cast by the Chief Judge of the Supreme Court, who was also the President of the JSC.

The author alleged that the original proceedings were aimed at preventing him from campaigning for, and participating in, the 2013 presidential elections, contrary to his rights under Article 25 of the ICCPR.4 He stated that his detention and conviction on the charges of terrorism, without a fair trial, violated his right to stand for elections under Article 25 of the ICCPR. The author stated that his conviction and sentence were aimed at preventing his participation in the 2018 presidential elections, as he was effectively banned from running for political office for sixteen years, and from holding a leadership position in a political party, under the 2015 Amendment to the Prison and Parole Act. The author also claimed that his conviction for terrorism and the enactment of the Prison and Parole Act violated his right to association under Article 22 of the ICCPR. He argued that the Act, which was brought before the legislature two weeks after his conviction, was passed to obstruct him from leading his political party and participating in political activity.

The State denied the author's claims that he was forced out of office, stating that he had voluntarily resigned. It contended that the author's conviction on charges of terrorism and his sentence were imposed in accordance with the law, and were not politically motivated. Accordingly, it argued that the restrictions on his rights to political participation and association were justified and reasonable. The State maintained that the author was afforded a fair trial. It argued that since the facts of the author's case arose in 2012, he and his lawyers had had enough time to prepare his defence. It argued that the

author's counsel were unable to attend the first day of hearing because they failed to register on time. It also denied the author's allegations that he was prevented from calling defence witnesses or conducting a proper cross-examination. The State submitted that the author was unable to lodge an appeal because he did not file it on time. It argued that the author had requested the Prosecutor General to appeal on his behalf, and filed a subsequent appeal on grounds of legal error and procedural violations. The State submitted that the Supreme Court had not yet decided whether to grant leave for appeal.

Held:—The communication was admissible. The State had violated the author's rights to fair trial and political participation under Articles 14 and 25 of the ICCPR.

(1) The State had not responded to the author's allegations that his rights to a fair trial were violated in the original proceedings, or the findings of the reports submitted in support of his claims, which raised concerns about the lack of independence of the judiciary, the politicized composition of the JSC, and the manner in which the Magistrates' Court was constituted (para. 8.2).

(2) The State had failed to justify the requalification of charges against the author from an abuse of authority to a charge of terrorism. The State had also failed to demonstrate that the author's alleged conduct satisfied the elements of the crime of terrorism under the Prevention of Terrorism Act 1990. Additionally, the crime of terrorism under that Act was broadly and vaguely formulated, in a manner that was susceptible to wide interpretation and incompatible with the principle of legal certainty (para. 8.3).

(3) The proceedings in which the author was convicted and sentenced for terrorism violated the author's right to a fair trial under Article 14(1) and (3) of the ICCPR. The State did not refute the author's claims that the judges who presided over his trial lacked independence and impartiality, as two of the three judges were close friends of the Chief Justice, who submitted witness statements on his behalf to the police and the Maldives Human Rights Commission, and were also listed...