Preliminary observations on the official visit to the United Arab Emirates by the United Nations Special Rapporteur on the independence of judges and lawyers (28 January-5 February 2014)

Abu Dhabi, 5 February 2014

The purpose of the visit was to examine, in the spirit of co-operation and constructive dialogue, both the achievements and shortcomings of the country in ensuring the independence of the judiciary and the free exercise of the legal profession. I also concentrated on key issues regarding the administration of justice, such as guarantees of due process and fair trial, equal access to justice, the position of women in the justice system, accountability processes for judicial actors, and issues related to the independence of non-Emirati judges.

I will now share a few preliminary observations and recommendations. I will further develop my assessment in a written report, which I will present to the United Nations Human Rights Council in 2015.

Let me first thank the government of the United Arab Emirates for inviting me to conduct this visit and engaging with my mandate. I am pleased that, as a member of the Human Rights Council, the United Arab Emirates is setting a positive example of cooperation with international human rights mechanisms in the Gulf region.

During my visit to the Emirates of Abu Dhabi, Dubai and Sharjah, I had the opportunity to meet with a number of senior government officials, including at the Federal Ministries of Interior, Justice, and Foreign Affairs, at both federal and emirate level. I also met with the Chief Justice of the Federal Supreme Court and members of the federal judiciary, judges from the local courts of Abu Dhabi and Dubai, the Federal Prosecution Office, the Prosecution Office of Dubai, and lawyers. Finally, I met with representatives of the diplomatic community, United Nations agencies and civil society.

I would like to seize this opportunity to thank all the people and institutions who received me for their warm hospitality and the wealth of information they shared with me. I also wish to recall that by inviting me to conduct this official visit, the government agreed to the terms of reference of such visits, which include a guarantee that no persons – official or private individuals – who have been in contact with me in relation to my mandate will for this reason suffer threats, harassment or punishment, or be subjected to judicial proceedings*.

I was informed by the government that a new federal law on the judiciary is being drafted which would increase the independence of the judiciary. This document is being drafted by the executive branch of government, and to my knowledge no representatives of the judiciary were consulted on its content, nor was the Federal National Council involved. Such an important piece of legislation should be drafted with the meaningful participation and consultation of the actors of the justice system. An open debate on the content of the legislation would also contribute to raising public awareness of the importance of an independent judiciary. I have been unable to obtain a copy of the draft so far, but I look forward to receiving it from relevant authorities as I hope that my preliminary observations and recommendations will be taken into account.

Independence of the judiciary

I wish to commend the recognition of the principle of the independence of the judiciary and the rule of law in the Constitution of 1971. The justice system developed into an elaborate court system with federal and local courts in a relatively short timeframe.

Yet, an important challenge for the independence and impartiality of the judiciary is that the judicial system remains under the de facto control of the executive branch of government.

I recommend that the administrative competence currently exercised by the executive power be transferred to the judiciary itself. The composition of the Supreme Council for the Federal Judiciary should also be revised as out of seven members only three are judges, and three members represent the executive. As called for by international law, I strongly advocate for legislation governing the judiciary to be revised in order to allow the judiciary to self-govern itself and administer the courts directly.

The independence of non-Emirati judges is another issue that requires reflection. Their tenure and work conditions are not guaranteed in the same way as national judges, and they come to the United Arab Emirates under temporary contracts. While this seems incompatible with the principles on the independence of the judiciary, I understand that exceptional circumstances created this necessity. It is within the sovereign right of the United Arab Emirates to open the judicial profession to foreign nationals; yet, while tenure and the length of secondment is regulated by those judges’ home countries, foreign judges should be provided with the same conditions of work and guarantees protecting their independence as is accorded to Emirati judges, and a clear plan should be designed to accelerate the training and recruitment of more Emirati personnel, men and women, in the judiciary.

Strengthening public confidence in the justice system

Public confidence in the justice system is fundamental for the stable development of a State. In this context, I was informed that the government has established a strategy to improve the criminal justice system and to promote a culture based on the respect for human rights. Nevertheless, during the visit, I have received concerns that laws are sometimes arbitrarily applied; this creates uncertainty and mistrust in law enforcement authorities and the justice system. The public’s awareness needs to be raised about the content of legislation, its application, what differences exist between the different Emirates, and the application of federal laws.

An important way to enhance the public’s legal awareness is by publishing all legislation in the official gazette. Yet, according to information received, the Law on State Security of 2003 was never published in the official gazette, and lawyers do not have copies of the law. Nevertheless, it seems that the law is regularly invoked in criminal cases, in violation of the principle of legality; it is fundamental to all legal systems that laws which are not published cannot be applied in court.

Management of courts and cases

I have witnessed that both Abu Dhabi and Dubai local justice systems have developed very advanced computer-based systems for the management of the courts, as well as cases. These systems allow for the on-line access to a significant amount of information, including the status of cases, hearing dates, and statistics. They have also developed impressive applications for mobile phones which facilitate the work of judges, lawyers and court users alike. I hope that such sophisticated tools will soon be available for criminal cases, or for federal courts.

Differences in the quality of judicial services offered to residents of the seven Emirates are also a matter of concern. This tiered judiciary is compounded by the existence of free-zones where foreign common law principles apply to business cases with lawyers and judges, often migrant workers themselves, operating rules of proceedings that are much more in line with international standards than the ones in the rest of the country. It may take time to eliminate completely the need for separate jurisdictions, but I would like to call for more efforts to close the gaps and bring the regular justice system up to par with such specialized courts.

Public prosecution

At both emirate and federal level, the public prosecution forms part of the judiciary. It is responsible for investigating crimes, issuing arrest, search and seizure warrants, initiating criminal proceedings, and enforcing criminal judicial decisions. It also has an oversight role in monitoring detention centres and in the administration of justice, including by its presence on the bench and participation in disciplinary proceedings against lawyers. Regarding regular criminal investigations, prosecutors have the competence to order the preventive detention of individuals for up to 21 days.

This concentration of functions in the hands of the prosecution during criminal proceedings is a matter of serious concern. Such centralization of power may hamper the independence and fairness of criminal investigations and proceedings, thereby affecting the principle of equality of arms, which requires procedural equality between the prosecution and the defence. In this regard, I wish to encourage the prosecutor’s office to conduct a comprehensive assessment of its functions in line with international principles on the administration of criminal justice and to envisage transferring some of its powers to other institutions. For instance, judicial decisions should be enforced by judges rather than prosecutors.

I am also concerned about reports which indicate that the prosecution services are often influenced by members of the executive and state security services. Prosecution services should be autonomous and prosecutors should perform their functions in an independent, objective and impartial manner, in compliance with the law and international legal principles, including the fundamental principle of the presumption of innocence.

I have heard claims that evidence is sometimes manipulated and fabricated by the police or other security agencies and the prosecution. I was also told that prosecution services pursue cases even when charges have been proven unfounded or are even contradictory. In one instance, one defendant was already in detention at the time of the alleged facts he was prosecuted for, while another was outside of the country and had official evidence to prove it. Despite this, they were prosecuted, and later condemned, for activities which were physically impossible based on clear and available evidence.

The legal profession

Coming to the legal profession, I would like to highlight my concerns regarding the absence of an independent self-regulating bar association to regulate the process of admitting candidates to the legal profession; which provides a uniform code of ethics and conduct; and enforces disciplinary measures, including disbarment. In the United Arab Emirates these competences currently fall under the purview of the Ministry of Justice.

Significant steps should be taken towards the establishment of an independent bar association, which would provide an umbrella of protection for its members against undue interference in their legal work, and which will monitor and report on their members’ conduct and apply disciplinary measures in a fair and consistent manner. The establishment of self-governed independent bar association is a key element to the independence of lawyers.

Like judges and prosecutors, lawyers play an essential role in ensuring the independence of the judiciary and upholding the rule of law and human rights. I am therefore concerned about reports of surveillance, harassment, pressure and threats being exerted on lawyers. I urge the authorities to take immediate measures to put an end to this situation. Lawyers should not be identified with their clients or their clients’ cause as a result of discharging their professional functions. I have heard of a case where a lawyer who was enquiring about the whereabouts of his arrested client was arrested as well. This is clearly unacceptable and should be immediately investigated.

Equal access to justice

Justice, as a fundamental right, requires that everyone is equal before the law. It seems that women, however, are still faced with institutionalized gender discrimination within the administration of justice. While there are women judges in the local courts of Dubai and Abu Dhabi, women are still prohibited from becoming federal judges. This discrimination violates the Convention on the Elimination of All forms of Discrimination against Women to which the United Arab Emirates acceded in 2004. There are also major obstacles to women's access to justice. I was told, for instance, that the majority of sexual assault cases do not reach the courts as there is a great stigma and social pressure against women going to the police and the courts.

The treatment of some women who dare to file a complaint for sexual assault is also disturbing. In a widely publicized case, a woman of foreign nationality who went to the police to file a complaint for rape ended up being prosecuted and convicted on the grounds of “illicit sex/adultery”. I encourage the government to take urgent measures to mainstream a gender-based approach in the justice system, to ensure that women can access justice to claim their rights on an equal footing with men and be treated with the same respect, and to facilitate women’s appointment as judges.

Due process and fair trial

Judges and prosecutors have an obligation to not only respect and enforce the rights of the parties, including due process and fair trial guarantees, but they also have an obligation to uphold human rights. In this sense, the notions of fair trial and due process include the guarantee of a fair and public hearing by an independent and impartial tribunal established by law. Any evidence that may have been obtained through recourse to torture or ill-treatment cannot be received in court, but rather must be used to prosecute those who used such methods.

Serious concerns were expressed to me about violations of due process and fair trial guarantees and their consequences on peoples’ lives and respect for their most fundamental human rights.

I am particularly concerned by reports that authorities arresting persons for alleged crimes against the security of the State almost systematically violate the due process and fair trial guarantees which exist under national and international law. From the moment of the arrest, usually carried out without a warrant, until the end of the trial, numerous and serious procedural violations have been observed. I have received many reports that in such cases, individuals are often brought to secret detention facilities and kept incommunicado for days, weeks or even months, and are sometimes kept in solitary confinement. I have received credible information and evidence that in many of these cases, detainees are tortured and/or subjected to ill-treatment.

Not only was I informed about the details of the alleged acts of torture committed against these persons, but I was told that no serious independent investigation has taken place, even when detainees have complained about the torture and other ill-treatment, in person or through their lawyers, to prosecutors and judges. I wish to recommend the establishment of an independent committee composed of professionals with international expertise and experience, including in medical forensics and psychology and post-traumatic disorders, to investigate all claims of ill-treatment and torture of persons in detention. Such a committee should have access to all places of detention and be able to interview detainees in private.

I am concerned that without an independent investigation, the perception that the State violates the fundamental rights of its citizens will undermine the rule of law, the authority of the State and its international image.

The United Arab Emirates joined most countries of the world as a State party to the Convention against torture and other cruel, inhuman or degrading treatment or punishment in 2012. I would hope that by the time the Government presents its initial report to the Committee that monitors the application of this convention these practices and the impunity of their perpetrators will belong to the past.

Transparency of proceedings and public hearings

The apparent lack of transparency during both the investigation phase and court proceedings remains a matter of concern, particularly in cases heard before the State Security Chamber of the Federal Supreme Court. Lawyers also seem to be confronted with serious difficulties in accessing information, in particular during the investigation phase in the criminal justice system. Lawyers must have their full access to appropriate information, files and documents in the possession or control of the authorities guaranteed in law and in practice. Such access should be already accorded at the investigative stage in order to allow for the preparation of an adequate defence. Appropriate information includes, at a minimum, all materials that are exculpatory or that the prosecution plans to offer in court against the accused. Lawyers should also have unrestricted access to their clients in private.

This lack of transparency is compounded when the court hearings are not public. The notion of fair trial includes the guarantee of a fair and public hearing. Indeed, the publicity of hearings ensures the transparency of proceedings, thereby providing an important safeguard for the defendant. I am concerned about reports that in many high level cases heard before the State Security Chamber of the Federal Supreme Court, the hearings were held in closed sessions or with limited public access.

According to information, compulsory registration and other burdensome administrative requirements have to be complied with by family and members of the public alike, including international trial monitors. Even when such requirements have been fulfilled, access to the hearings is often still arbitrarily denied to many when they present themselves before the court. Courts do have the power to exclude all or part of the public in exceptional circumstances, but it cannot become the de facto rule. Excluding the public from hearings contributes to nourishing doubts as regards the fairness of the proceedings.

I am also concerned about reports that translations and interpretation in court cases involving non-Arabic speakers, while required by the law, are not always provided in practice or that the quality is poor. The United Arab Emirates praise itself on the diversity of its population, it should therefore strive to offer quality interpretation and translation to all those under its jurisdiction.

Right to appeal

According to information received, cases dealing with State security crimes are considered in first instance by the State Security Chamber of the Federal Supreme Court. As a result, there is no higher instance in the country to which the decisions and sentenced rendered by this Chamber can be appealed. As a result, the right of defendants to appeal their cases and to have their convictions reviewed by a higher tribunal is denied. I strongly recommend that measures be taken to enforce the rights of defendants to an appeal.

Education and training

I wish to encourage that more resources be invested into capacity building for judges, prosecutors and lawyers. Without such efforts, the ultimate aim of the country to nationalize its judiciary will not be achieved. On-the-job trainings must be made mandatory. The application of the knowledge or skills gained during training should also be assessed and, on the basis or the result gathered, the needs for training should be revised.

Conclusions

Despite progress, the current judicial system in the United Arab Emirates still faces challenges that directly affect the delivery of justice, the enforcement of peoples’ human rights and the public’s confidence in the judiciary. Such challenges should not be ignored, but rather they should be assessed and addressed as a matter of urgency in order to bring the administration of justice in the United Arab Emirates in line with international human rights standards.

The United Arab Emirates have come a long way since their independence in 1971. While the achievements should be acknowledged and commended, the country must not rest as the gaps and shortcomings in its legal and judicial systems may undermine peoples’ exercise of their human rights and present obstacles to the country’s further economic growth and stable political development.

I strongly encourage the United Arab Emirates to continue engaging with human rights mechanisms; in particular I recommend that the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and the Working Group on Enforced or Involuntary Disappearances be invited to conduct official visits.

As a member of the Human Rights Council, the country should spare no efforts in effectively implementing human rights recommendations. The relevant offices and agencies of the United Nations, in particular the Office of the High Commissioner for Human Rights, stand ready to provide the necessary technical assistance and advice. The United Nations Office on Drugs and Crime, for instance, has an array of ready-to-use tools that can be implemented to consolidate the functioning of the criminal justice system and enhance its transparency in line with international human rights principles.

To conclude, I would like to add the following recommendations to those which I have already made in my statement. The United Arab Emirates should:

• Ratify the International Covenant on Civil and Political Rights and its Optional Protocols, as well as the International Convention for the Protection of all Persons from Enforced disappearance;
• Allow for the participation and consultation of the actors of the justice system and the public in the drafting process of the revised law on the judiciary;
• Publish all federal and local laws and regulations in the official gazette, post them on-line for public access, and raise public awareness about their content and the obligations they entail;
• Promote consistency in the application of federal laws and procedures and in the publication and availability of judicial decisions and cases;
• Revise the legislation to ensure the right of appeal in cases currently heard in first instance by the State Security Chamber of the Federal Supreme Court;
• Take measures to ensure the independence of the judiciary, and in particular adopt legislation to separate the functions of the Ministry of Justice from those of the judiciary and the courts;
• Ensure that non-Emirati judges are provided with all the guarantees given to national judges, as long as they are in line with the rules of secondment of their home country. The duration of the contracts of such judges should be guaranteed for the duration of secondment allowed by the home country and not be subject to a yearly renewal;
• Take measures to ensure the independence of prosecutors from the Ministry of Justice and other parts of the government;
• Revise the competence and functions of public prosecution;
• Ensure the independence of lawyers, in part by establishing and officially recognising an independent self-elected bar association, which is not subject to government control or oversight;
• Promote the participation of women in the justice system, including by revising the legislation that prohibits women from becoming federal judges, and develop gender-sensitive procedures, policies and practices to promote equal access to justice;
• Redouble efforts to develop procedures, policies and practices to promote equal access to justice, in particular to vulnerable groups, such as migrant and domestic workers;
• Extend the use of modern technology, in particular in the criminal justice system and in the federal justice system, and record all hearings in order to ensure the proper, adequate and transparent administration of justice;
• Provide quality interpretation and translation for non-Arabic speakers at all stages of legal proceedings, including during the investigation and initial detention phases;
• Establish an independent committee to investigate all allegations of torture and ill-treatment in detention, including during preventive and pre-trial detention; the composition of such a committee should be agreed upon with the defendants’ lawyers and should include the participation of professionals specialized in forensic medicine psychology and post-traumatic disorder; and
• Develop legal and professional training programmes, including continuing and specialized training, which should be available to all judges, prosecutors and lawyers, regardless of the level at which they operate.

1. Terms of Reference for Fact-Finding Missions by Special Rapporteurs/Representatives of the Commission on Human Rights (Appendix V, E/CN.4/1998/45)