Continuing judicial harassment against 5 defenders from TRACKs and the Director of ZORD

New information

SDN 001 / 1016 / OBS084.5

Judicialharassment / Arbitrary detention /

Healthdeterioration while in detention /

Arbitraryarrest

Sudan

January 18, 2017

TheObservatory for the Protection of Human Rights Defenders, a partnership of FIDHand the World Organisation Against Torture (OMCT), has received new informationand requests your urgent intervention in the following situation in Sudan.

New information:

TheObservatory has been informed by reliable sources about the continuing judicialharassment against five human right defenders working at the Centre forTraining and Human Development in Sudan (TRACKs)[1],namely Mr. Al Hassan Kheiry, a computer technician, Ms.Arwa Elrabie, the AdministrationManager, Ms. Imany-Leyla Raye, a student volunteer, Mr. Khalafalla Al-Afif Mukhtar, theDirector, and Mr. Midhat A. Hamdan,a trainer, as well as against the Director of Zarqa Organisation for RuralDevelopment (ZORD) who had delivered training for TRACKs, Mr. Mustafa Adam, aswell as the arbitrary detention of the last three (see background information).

According to the information received, onJanuary 10 and 12, 2017, new court sessions were held before the KhartoumCentral Criminal Court. This was the nineteenth hearing since the opening ofthe trial on August 24, 2016.

On January 10, the Court heard the testimoniesof two witnesses. First, the Ambassador of Sudan before the United Nations inGeneva was brought to the bar to report on the negative impact on Sudandiplomatic relations with foreign actors of the alleged activities of thedefendants. He claimed that, even though civil society organisations areallowed to work and report on human rights violations, these reports must nothave any political content and must be submitted to the government for approvalbefore being disseminated to foreign bodies. He was also asked to give hisopinion 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 wasbrought as witness to discuss the credibility of the scenes in Beats of the Atonov and Attack on Darfur. He stated that thefilms 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, theirinvolvement with the centre and the various activities conducted. Mustafa Adamwas also questioned regarding his relation to the International Criminal Court(ICC).

The next hearing will take place on January 19,2017 at 12 pm. During this session, the judge will decide whether the chargesshould be dropped or confirmed.

TheObservatory recalls that the six human rights defenders are facing crimesagainst the State, which carry the death penalty (see below).

Threeof them remain arbitrarily detained in Al-Huda prison in Omdurman, namelyMessrs. Khalafalla Al-Afif Mukhtar, Mustafa Adam and Midhat Afifi Hamdan,despite a United Nations Working Group on Arbitrary Detention (WGAD) decisionrequesting their immediate release.

TheObservatory also expresses concerns regarding the deteriorating health of Mr.Khalafalla Al-Afif Mukhtar, who suffers from a heart condition and does nothave access to appropriate medical care in prison.

TheObservatory urges the Sudanese authorities to release immediately Messrs.Khalafalla Al-Afif Mukhtar, Mustafa Adam and Midhat A. Hamdan and drop all thecharges against them and against Mr. Al Hassan Kheiry, Ms. Arwa Elrabie and Ms.Imany-Leyla Raye, since they only aim at sanctioning their legitimate humanrights activities.

Untilall charges are dropped against them, the Observatory urges the Sudaneseauthorities to ensure that the conditions of detention of the threeabove-mentioned human rights defenders are humane, and that all judicialproceedings against the six are carried out in full compliance with their rightto a fair trial, as protected under international law.

Backgroundinformation:

On March 26, 2015, approximately ten plain-clothed National Intelligenceand Security Services (NISS) agents raided TRACKs’ premises, during the lastday of a training on “social responsibility and active citizenship”. No searchwarrant was presented and computers and documents belonging to TRACKs wereconfiscated. Mr. Khalafalla Al-AfifMukhtar was detainedfor one day following the raid and later released on bail.

Following the raid, on April 16, 2015, Mr. Adil Bakheit, memberof the Board of Trustees of the Sudan Human Rights Monitor (SHRM)[2]was arrested and charged with “joint acts in the execution of criminalconspiracy, undermining the constitutional system, waging war against theState, calling for opposition to public authority by use of violent or criminalforce, publication of false news, and impersonating a public servant”.

In May 2015, Mr. Khalafalla Al-Afif Mukhtar was charged with a number ofcrimes, including “criminal conspiracy”, “undermining the constitutionalsystem” 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 phonecal from the NISS Prosecution Office of Crimes against the State, he wasinformed by the prosecutor that after 11 months of looking into the fivelaptops and the server of the centre, they did not find any evidence to supportthe charges made against them and therefore they decided to drop the

case. The prosecutor also informed him that NISS had two weeks to appealtheir decision. If NISS did not appealwithin the timeframe, then Mr. Mukhtar should come to the NISS ProsecutionOffice in order to collect his laptops and the server that had beenconfiscated.

On February 29, 2016, NISS officers raided for the second time TRACKsoffices without any warrant and brought the staff present in the premises tothe police station in order to interrogate them for 12 hours on TRACKs’activities, including on their relation to the Al-khatim Aldan Center forEnlightenment (KACE)[3].Moreover, the NISS officers severely threatened, verbally abused andill-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 aswell as three other TRACKs staff, Ms. Nudaina Kamal, accountant, Mr. KhuzainiEl Hadi and Mr. Al Shazali Ibrahim Al Sheikh were summoned to theNISS Department in Khartoum. Only two of them were questioned and furtherthreatened in relation to their personal activities, including their activismand sources of income, while others were kept waiting before all theindividuals 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 onJune 7, 2016.

On August 15, 2016, Messrs. Khalafalla Al-Afif Mukhtar, Mustafa Adam andMidhat Afifi Hamdan were transferred to Al Huda prison after spending almostthree months in a narrow cell with poor ventilation and access to food, noaccess to medication and limited access to toilet at the State Prosecutionoffice 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 CriminalAct of “criminal conspiracy” (Article 21), “undermining the constitutionalsystem” (Article 50), “waging war against the State” (Article 51) and“espionage” (Article 53)[4]opened before the Khartoum Central Criminal Court. Such offences areclassified as crimes against the State and carry the death penalty. Messrs.Midhat Afifi Hamdan and Mustafa Adam are also facing charges under Article 14of the Information Crime Law. Thesecharges relate to accusations of producing, setting, sending, storing orpromoting indecent content through internet, computer or alike that affectpublic order or morals. They carry additional sentences of imprisonment up toten years and a fine.

OnAugust 25, 2016 the UN Working Group on Arbitrary Detention (WGAD) adopted adecision[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 AlSheikh, Mr. Adil Bakheit, and Mr. Khuzaini El Hadi to be arbitrary and thus inviolation of their rights as enshrined in Articles 9.2 and 19 of the ICCPR and19 of the UDHR.

On September 22 and 29, 2016, the Prosecutor showed a number of personalpictures and materials found on the laptops of the defendants[6],although completely irrelevant to the charges and in blatant breach of their rightto privacy and property. Furthermore, the Prosecutor claimed TRACKs’ activitieswere used to carry on the work of KACE despite being shut down by theauthorities in 2012.

The Prosecutor also claimed that TRACKs was operating without beingregistered as a training centre, since their licence ended on March 27, 2015.However, TRACKs’ application to renew their licence in due time, which includedthe payment of registration fees to the National Centre for Training, has beendelayed by the authorities due to “internal issues”. The status of theirapplication is therefore still pending, which nonetheless enables TRACKs tolegally operate under Sudanese legislation.

The hearing of September 29, which started with two hours delay due tothe late arrival of both Prosecutor and Investigator, was eventually suspendeddue to a power cut.

On October 6, 2016, the Prosecutor continued showing evidence allegedlyfound 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].

TheProsecutor also presented the registration form filled out by TRACKs to theNational Center for Training. In this document, TRACKs requested to be registeredas a centre that works on trainings covering a wide scope of issues such asNGO, time and project management as well as proposal-writing, negotiations,conflict analysis and youth capacity-building. The Prosecutor argued thatTRACKs was not registered to carry out trainings on human rights and humanrights monitoring.

Lawyersof the defendants requested evidence to be stamped by the forensic laboratoryand cross-examined.

OnOctober 13, 2016 a power cut led the hearing to be held in a very small courtroomon the ground floor, thus preventing many journalists, activists, familymembers of the defendants as well as a diplomatic staff member from enteringthe room despite their protests, in breach of the principle of publicity ofdebates.

Duringthe hearing, the Prosecutor continued showing evidence allegedly found on thelaptops of the defendants. These included evidence completely irrelevant to theproceedings, such as a list of names of invitees to the Human Rights Counciland a letter addressing the German Democratic Republic[8]. Amongst thedocuments brought forward were also a report on human trafficking in Sudanaddressing the role of state forces as well as Mr. Mustafa Adam’s membership tothe International Criminal Court Coalition.

OnOctober 22, once more, the Prosecutor showed evidence allegedly found on thedefendants’ laptops. Amongst these were reports about workshops and trainingsessions on the human rights situation in Sudan, as well as on the rights andprotection of human rights defenders under international law.

Inhis final attempt to portray TRACKs and its members as working against theSudanese 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, Omaral-Bashir, and for the economic sanctions adopted against Sudan. According tohim, “TRACKs’ activities are responsible for the demise of the State”.

In addition, the Prosecutor focused part of hisintervention 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, andwithout any evidence provided, the Prosecutor nonetheless argued that TRACKswas “working alongside him to support the military opposition in Darfur”.

Duringthe same October 22 hearing, two journalists were prevented from entering thecourtroom. In particular, Mr. Adil Color, Al-Ayam journalist, hadhis press card confiscated and was forced to leave the courthouse followingacts of harassment against him while trying to cover the trial. As forjournalist Mr. Ibrahim al-Safi,he was stopped at the door, and taken to an office downstairs before activistsintervened to take him out.

On November 10, the trial resumed with an hourdelay. On that day, the defence team proceeded to the cross-examination of theinvestigator representing the States Crimes Prosecution Office on the evidenceand arguments provided by the Prosecutor. The latter denied any knowledge ofthe international human rights framework, and of the International CriminalCourt (ICC) investigation in Darfur despite the Prosecutor’s previous attemptsto blame TRACKs and its members for the “negative opinion” the ICC, the UnitedNations (UN) and the European Union (EU) have of the Sudanese President, Omaral-Bashir, and for the economic sanctions adopted against Sudan (see backgroundinformation).

The defence team also claimed that theinvestigator had committed some procedural irregularities with respect to thesearch warrants and seizures that took place within TRACKs premises.

In addition, on November 10, twojournalists were violently arrested and briefly detained by NISS officers.Namely, Mr. Ibrahim al-Safi and Ms. Amel Habbani’s phone were searched forallegedly taking pictures inside the courthouse. The security officers slappedMs. Habbani as she refused to hand in her cell phone.

Furtherhearings dedicated to the cross-examination of evidences presented by theinvestigator by the defence and the State prosecutor team took place onNovember 17, 22 and 29, 2016.

OnDecember 6 and 13, 2016, the court heard several witnesses, including NISSofficers.

OnDecember 27, 2016, the court heard two witnesses presented by the State CrimeProsecutor.

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 relatedto another raid conducted at TRACKs’ offices on March 26, 2015. The case wasdropped on February 2016 by the State Crimes Prosecution Office, and re-openedby the same on August 15, 2016. Their first hearing should have taken place onAugust 24, 2016 but has already been postponed three times and no date for thenext hearing has been set yet.

Actions requested:

TheObservatory urges the authorities of Sudan to:

i. Release immediatelyand unconditionally Messrs. Khalafalla Al-Afif Mukhtar, Mustafa Adam and Midhat A Hamdan and guarantee inall circumstances their physical and psychological integrity;

ii. Drop all charges against Messrs. Khalafalla Al-Afif Mukhtar, Mustafa Adam, Midhat A Hamdan, Al Hassan Kheiry, Mrs. Arwa Elrabie andMs. Imany-Leyla Raye, as they only aim at sanctioning their human rightsactivities;

iii. Put an end to any kind of harassment, includingat the judicial level, against them, as well as againstall human rights defenders in Sudan, and ensure in all circumstances that theyare able to carry out their activities without hindrances;

iv. Conform to the decision of the UNWGAD of August2016;

v. Conform in any circumstances with the provisionsof the UN Declaration on Human Rights Defenders, in particular its articles 1,6 and 12.2;

vi. Ensure in all circumstances respect for theright to a fair trial as enshrined in Article 10 of the Universal Declarationof Human Rights and Article 14 of the International Covenant on Civil andPolitical Rights (ICCPR);

vii. Ensure in all circumstances respect for humanrights and fundamental freedoms in accordance with international human rightsstandards and international instruments ratified by Sudan.

Addresses:

· Mr. Omar Hassan Ahmad al-Bashir, President of Sudan; Fax: + 249 183 783223

· Mr. Awad Al Hassan Al Nour, Minister of Justicer; Fax: 249 183 764 168 / +249 183 770 883; Email: moj@moj.gov.sd

· Mr. Ibrahim Ahmed Ghandour, Minister of Foreign Affairs; Fax: 249183772941

· Mr. Ismat Abdelrahman Zeinalabdin, Minister of Interior; ;; Fax: +249 183 779383 / +249 183 776 554; Email: ministry@mfa.gov.sd

· Advisory Council for Human Rights, Rapporteur, ;Fax: +249 183 77 08 83

· H.E. Mr.Mustafa Osman Ismail Elamin, Ambassador, Permanent Mission of the Republic of Sudan to the United Nations in Geneva, ;Fax: +41 22 731 26 56 / +41 22 716 19 70; Email: mission.sudan@bluewin.ch

· Embassy of Sudan in Brussels, Avenue F.D. Roosevelt 124, 1050 Brussels, Belgium. Fax: 0032 (2) 648 34 99, Email: sudanbx@yahoo.com

Please also write to diplomatic representations of Sudan in your respective countries.

***

The Observatory for the Protection of Human Rights Defenders (theObservatory) was created in 1997 by FIDH and the World Organisation AgainstTorture (OMCT). The objective of this programme is to intervene to prevent orremedy situations of repression against human rights defenders. FIDH and OMCTare both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanismimplemented by international civil society.

[1] TRACKs is a Sudanese NGO providing training on various topics relatingto human rights and information technology.

[2] See the Observatory’s UrgentAppeals SDN 001 / 0415 / OBS 033 and SDN 001 / 0415 / OBS 033.1, published onApril 21 and May 18, 2015.

[3] KACE aimed to developdemocratic modes of behaviour, to encourage freedom of thought and freedom ofscientific research, and to reinforce peaceful and civilized debate amongstdifferent groups and sectors of the society. Sudanese authorities shutdown KACE in late 2012 on allegations of working to topple the regime.

[4] Previouslythe charges included Article 65 “criminal and terroristorganisation”, but on October 20, the Prosecutor did not require itsapplication and instead added Article 21 to the charges. Article 21 reads “whenan offence by two or more persons in execution of criminal conspiracy betweenthem, each of such persons shall be responsible for that offence in the samemanner as if it is committed by him alone, and shall be punished with thepenalty prescribed therefore”. Since the other charges carry the deathpenalty, it is believed that this article could also be used by the Court tohand down such a sentence.

[5] See Opinions adopted by the UNWGAD at its 76th session, 22-26 August2016 available at:http://www.ohchr.org/Documents/Issues/Detention/Opinions/Session76/34-2016.pdf.

[6] The materials shown in Courtwere film documentaries, 41 pictures of one taken during workshops or meetingsand several personal pictures taken during private time with friends.

[7] In reality, these were formsfor an International Criminal Court (ICC) witness-protection programme run bythe US Embassy.

[8] The defence had to point outthat this country does not even exist anymore.