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Mohamed Nasheed, Citizen of the Republic of Maldives

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PETITION TO: UNITED NATIONS WORKING GROUP ON ARBITRARY DETENTION Chairman/Rapporteur: Mads Andenas (Norway) Vice-Chairperson: Vladimir Tochilovsky (Ukraine) Sètondji Roland Adjovi (Benin) José Guevara (Mexico) Seong-Phil Hong (Republic of Korea) HUMAN RIGHTS COUNCIL UNITED NATIONS GENERAL ASSEMBLY In the Matter of Mohamed Nasheed, Citizen of the Republic of Maldives v. Government of the Republic of Maldives URGENT ACTION REQUESTED And Petition for Relief Pursuant to Resolutions 1997/50, 2000/36, 2003/31, 6/4, 15/18, 20/16, 24/71 Submitted By: Jared Genser & Maran Turner Ben Emmerson QC Amal Clooney Freedom Now Matrix Chambers Doughty Street Chambers 1776 K Street, NW, 8th Floor Griffin Building 54 Doughty Street Washington, DC 20006 Gray’s Inn, London London W1CN 2LS United States United Kingdom United Kingdom +1.202.466.3069 (phone) +44.207.404.3447 (phone) +44.207.404.1313 (phone) +1 202.478.5162 (fax) [email protected] [email protected] [email protected] @jaredgenser April 30, 2015 1 Resolutions 1997/50, 2000/36, and 2003/31 were adopted by the UN Commission on Human Rights extending the mandate of the Working Group on Arbitrary Detention. The Human Rights Council, which “assume[d]… all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights…” pursuant to UN General Assembly Resolution 60/251, GA Res. 60/251, Mar. 15, 2006, at ¶ 6, has further extended the mandate through Resolutions 6/4, 15/18, 20/16, and 24/7. 1 Table of Contents Basis for “Urgent Action” Request ................................................................................................. 3 Questionnaire To Be Completed by Persons Alleging Arbitrary Arrest or Detention .................... 5 Introduction ..................................................................................................................................... 7 I. Statement of Facts ..................................................................................................................... 8 A. Maldives Political Context ................................................................................................... 8 B. Political Career and History of Persecution Against Mohamed Nasheed ............................ 9 C. Pretext for the Forced Resignation and 2012 Trial of Nasheed .......................................... 12 D. Terrorism Charges and Current Detention of Mohamed Nasheed ..................................... 15 II. Legal Analysis ....................................................................................................................... 19 A. Category I: No Basis for Detention .................................................................................... 20 B. Category II: Substantive Fundamental Rights .................................................................... 23 1. The Maldivian Government Detained Nasheed Because He Exercised His Rights to Freedom of Opinion and Expression ............................................................................... 23 2. The Maldivian Government Detained Nasheed Because He Exercised the Right to Freedom of Association ................................................................................................... 27 3. The Maldivian Government Detained Nasheed Because He Exercised the Right to Freedom of Political Participation ................................................................................... 28 C. Category III: Due Process Rights ....................................................................................... 31 1. The Maldivian Government Arrested Nasheed Mohamed Without a Proper Warrant ... 33 2. The Criminal Court Failed to Provide Equality Before the Law .................................... 34 3. The Criminal Court Failed to Provide an Independent and Impartial Tribunal .............. 35 4. The Criminal Court Failed to Provide the Right to the Presumption of Innocence ........ 41 5. The Criminal Court Interfered with the Right to Access Counsel .................................. 42 6. The Criminal Court Denied the Rights to Prepare an Adequate Defense, Call and Examine Witnesses, and Examine Key Evidence in Advance of Trial ........................... 44 7. The Criminal Court and High Court Failed to Provide a Public Trial ............................ 47 8. The Supreme Court and Criminal Court Prevented Nasheed From Making a Timely Appeal ............................................................................................................................. 48 9. Nasheed’s Punishment Is Grossly Disproportionate to the Alleged Crime .................... 50 10. The Maldivian Government Has Violated Right to be Free of Cruel, Inhuman, or Degrading Treatment or Punishment ............................................................................ 50 D. Category V: Discrimination Based on a Protected Class ................................................... 53 Conclusion ..................................................................................................................................... 54 2 Basis for “Urgent Action” Request As set forth in the attached Petition, the Government of the Maldives is arbitrarily depriving Mohamed Nasheed of his liberty. Mohamed Nasheed is a renowned journalist, climate change activist, and politician, distinguished for being the first democratically-elected president of the Maldives. Nasheed is currently being held in maximum security in the “Special Protection Unit” at Maafushi Prison, where he was transferred without notice to his family or counsel on April 27, 2015.2 Previously, the Human Rights Commission of Maldives found the facility itself to be unfit for prisoners.3 His “special apartment,” as the Government has absurdly called his cell, is highly unsanitary as it is located immediately adjacent to the prison garbage dump. His cell is full of flies and mosquitos that have been feeding off garbage and his food is barely edible. Prior to this transfer, Nasheed was held in mostly solitary confinement at Dhoonidhoo Island Detention Center from February 22 to April 21, and then Asseyri Jail on Himmafushi Island. Given the Maldivian authorities mistreatment of Nasheed, there is reason to believe that Nasheed’s health may be at risk. On the first date of his trial, February 22, 2015, Nasheed was brutally manhandled and physically dragged outside the Justice Building by the Maldivian police officials. As a result, he suffered physical injuries that required immediate medical examination, including a suspected fractured arm and finger, and injuries to his shoulder.4 However, Nasheed was not given immediate medical care, and no x-ray was taken to determine what injuries he suffered. Nasheed’s repeated pleas for medical assistance during the trial were declined and when a doctor that was provided by the Human Rights Commission of the Maldives went to conduct a medical examination at the prison, he was turned away by the prison authorities. Additionally, Nasheed suffers from chronic back pain, a result of the long years he has spent in prison and the torture he received there. This pain has only intensified as a result of the police manhandling and time spent in detention thus far. Nasheed has also complained of pain in his ribcage and chest, which he believes is related to being abused by the police. Nevertheless, the extent of his injuries is still unknown, as no independent doctor selected by the family has been permitted to examine him. The quality of the medical assistance provided by the prison authorities is highly questionable, and Nasheed’s request to seek independent medical treatment from an outside doctor has been denied. Since the transfer, visits from Nasheed’s family and counsel have been severely restricted. So far, his family has been able to visit him once at Maafushi Prison. On multiple occasions at Dhoonidhoo and Asseyri Prisons, his family and counsel have been denied entry, even after being previously told that visits would be permitted. This detention is the most recent act of the Maldivian Government in a long-running campaign to silence Nasheed and impede his political involvement. UN High Commissioner for 2 Nasheed Transferred to Maafushi Penitentiary, VNEWS, April 28, 2015, available at http://www.vnews.mv/42662. 3 Report on Visit to Maafushi Jail Submitted to Concerned Authorities, HUMAN RIGHTS COMMISSION OF THE MALDIVES, Feb. 11, 2009. 4 Supriya Jha, Ripped Shirt, Broken Arm: Maldives Ex-Prez Mohamed Nasheed Dragged Into Courtroom, ZNEWS INDIA, Feb. 24, 2015. 3 Human Rights Zeid Ra’ad Al Hussein said that it was hard to see how such hasty proceedings complied with the Maldives’ obligations to conduct a fair trial under international law, citing “flagrant irregularities.”5 UN Special Rapporteur on the Independence of Judges and Lawyers Gabriela Knaul observed “Nasheed’s trial was not only a clear violation of the Maldives’ international human rights obligations under the International Covenant on Civil and Political Rights, but it also made a mockery of the State’s own Constitution. The speed of the proceedings combined with the lack of fairness in the procedures lead me to believe the outcome of the trial may have been pre-determined.” And Amnesty International labeled it a “travesty of justice.”6 Accordingly, it is hereby requested that the Working Group consider this petition pursuant to its “Urgent Action” procedure.7 In addition, it is requested that the attached Petition be considered a formal request for
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