Illegal Detention of Kurdish Journalists and Activists: Details from Law Professionals
PEREGRAF- Sangar Salar
The decision to deal with the case of the Badinan detainees, from arrest to Court of Cassation was held such that "all of it was illegal" throughout all the stages of the case, involving several clear violations against the case and the rights of the accused, according to the judge, legal experts and lawyers on the case.
"The way the defendants have been arrested; the transfer of complaints to Erbil; the absence of lawyers at the time of receiving the statements of the accused; the failure of lawyers to oversee the case of the detainees; the way the trial has been conducted; the decision of The Criminal Commission as well as the decision of the Court of Cassation", are legal violations that the lawyers of the case, the judge and legal experts reveal to PEREGRAF in details.
In addition, a judge pointed out that Kurdistan Regional Government (KRG) Prime Minister Masrour Barzani, said that it was against the law to name the case and the accused as "spies and intruders" before being tried and this should not have been done.
"According to Article 235 of the Penal Code (Law No. 111 of 1969), which has been amended and is being applied in the region," Judge Abdulkarim Haider, a former member of the Regional Court of Cassation, told PEREGRAF.
"No one is allowed to talk about a case, or to be informed, whether the trial has been completed already or not. This is due to the lack of action on the trial process. Any person should not utter these things except the head of the government, because it is against the law."
"They are basically neither activists nor journalists, some of them," said Masrour Barzani, a week before the trial of 5 journalists and a Badinan activists. "They have been spying and they spied on other countries, some of whom have been involved in attacks, trying to blow up buildings and foreign people's positions in here, killing, kidnapping and they tried to ruin the state of affairs."
"Why was the least punishment imposed on these people, that is, 6 years, when they could sentence them to 20, 15, or 10 years in prison under the law?" Judge Abdulkarim Haider said. "In my opinion, judges did not believe the matter and were forced to punish them the least since they were being punished," he replied.
The way the accused were arrested
"From the beginning of the case, the way the defendants were arrested was illegal," Reving Yasin, a lawyer for the Badinan detainees' case, told PEREGRAF. "The judge will call and investigate with him, if necessary, he will decide to stop him," he said.
But as the lawyer explained, the warning did not go to the accused, but "they went home at midnight and the reputation of their family was tarnished, which is against the law, because the law says that if there is no foreign person or fear of escape, he must be arrested through legal action".
Bashdar Hassan, head of the lawyers' team in the case, also insisted and told PEREGRAF that "security forces entered the houses of the accused without having a home search warrant".
The Transfer of Complaints from Duhok to Erbil
All 5 journalists and activists are from Duhok province. A complaint was filed against them in the Provincial Court, after a while their cases have been transferred to the Erbil Second Criminal Court for a while.
"A case has occurred in Duhok, without a decision of review and order of the Minister of Justice - illegal transfer to Erbil," said lawyer Reving Yasin. "The case was transferred from Duhok to Erbil without any reason."
The Absence of Lawyers at the Time of Receiving the Statements of the Accused
Throughout the stages of working on a case in the Courts of Duhok and Erbil, the Badinan detainees’ lawyers have complained that they were not allowed to appear at the Asayish Investigation Court when they received the defendants' statements, which was "illegal".
According to the article 123 of the Code of Criminal Procedure which was amended in 2004, no suspect shall be investigated until the judge has asked him whether he would like to retain the services of a lawyer or not," said Latif Sheikh Mustafa, a legal expert who had previously been a judge.
"In order for the confession of the accused to be a legal condition, it must be in the readiness of his lawyer and one of the members of the public prosecutor, or if he doesn’t want a lawyer, they have procure him with a lawyer. The law and constitution stipulate: "If the accused says that he does not want a lawyer, the investigating judge will accept this condition and take a statement from him."
Lawyers being unable to see the case of the Detainees
Another criticism of the Badinan's arrest case lawyers is the way that the case was dealt with, such that lawyers were not allowed to see the defendants' cases, which is essential and in accordance with legal procedures.
"We did not see the case until the day of the trial," said Reving Yasin, a lawyer representing Badinan detainees.
"According to the law, we must have a case before and know its contents and the charges that have been brought against the suspects," he said.
Statements Given under Duress
On 16th of February 2021, the second day of the trial of Badinan journalists and activists, Harem Rafat, the lawyer representing both Sherwan Sherwani and Gohdar Muhammad, told PEREGRAF that "the accused admitted in front of the judge that they have all given their statements under threat".
"Sherwan Sherwani said they threatened him blackmails regarding his family," voiced the lawyer who participated in the trial. The accused had then asked the judge, "What will you do if they threaten you with imperilling your family?"
"The Criminal Commission should have investigated the manner in which the detainees were tortured," said Judge Abdul-Karim Haider, who had been the head of the Sulaimaniyah Court Commission for two years in the mid-nineties of the last century.
"If the accused says that he has been physically tortured, then he should be able to reveal the position of the torture on the body to the court. Indeed, the court said that the accused alleged that they had been tortured, and they were told to show the body parts where there had been physically torture, perhaps then they could see whether there had actually been torture or not, or the court can say that they sent the accused to the health committee to support him and to have the health committee's decision on their executions, but in fact, none of these have been done," the judge told PEREGRAF.
The Decision of the Criminal Commission and Review Process
The Erbil Second Criminal Commisson sentenced 5 activists and journalists in Badinan to 6 years in prison on 6th of February 2021, for a number of charges against them. The Regional Court of Appeal has also upheld the sentence, and the US and German Consulates have also been involved in the case.
"There is no legal evidence for punishing these people," said Latif Sheikh Mustafa, a legal expert who had previously been a judge. "What they did is not a crime. They say they have given information to the organization named February 17; February 17 is a Kurdish community in a foreign country and they have created a Facebook Page. Where is the problem with that?”
"Or they say: "They sat in the American consulate with the American Bar Association and received 5,000 dollars from them. At a time when the organization had taken over the rehabilitation and training of the Iraqi Court since 2003, they had sent Iraqi judges to Czech to follow a course. I was one of the judges who participated in the course, so they should all be arrested! "It is not a crime to take money from that organization," said Latif Sheikh Mustafa.
And also about the accused were in front of the judge and that they had been threatened and tortured. Judge Abdul-Karim Haider said that Asayish Investigation Court did not investigate this case and The Criminal Commission should have carried out the investigation to promote justice and show the independence of the court."
"It is a requirement at the time of receiving the statement of the accused, that both the lawyer and the representative to be present. If this condition is met, then the state is considered valid. But if one of these conditions is missing then it is not considered as a strong statement" judge Abdulkarim Haider said.
"If the torture was claimed in front of the court, the investigation should be carried out, but the Erbil Second Criminal Commission ignored this," said Latif Sheikh Mustafa.
The legal expert is the witness to a secret informant on the day of the trial, "The secret informant is not held accountable under Article 47 of the Code of Criminal Procedure," he said. "The charges are that they had groups in Messenger and have sent messages to each other, and none of this counts as legal evidence."
The Kurdistan Regional Court of Cassation, which is the last resort for the amendment of mistakes or shortcomings in a court decision, has also been subject to criticism in the case, just like the Asayish Investigation Court and the Erbil Criminal Commission.
The Court of Appeal did not mention any evidence in the case that was discussed on the day of the trial. "He talked about things that are not considered as crimes, but they are important to the Kurds. America isn’t the one who pays Peshmerga salaries?! If visiting their consulate is a crime then how can the government take money from them?” Reving Yasin, the lawyer for the Badinan detainees' case, asks.
"Regarding the matter of the defendants saying that have been prosecuted while acting under duress, the General Panel says: "Their confessions have been taken freely from them, so if it is the truth then why didn’t they fill the complaint?" I ask: Who, in the Asayish prison, can request the door to be open for them to go and fill in a complaint?
The Manner in which Investigation and Trial was Conducted
Another criticism of the way Badinan's arrest case was dealt with is that the Asayish Forces themselves were on the side of the defendants and who initially investigated them. On the day of the trial, a large number of Security Forces was brought into court and the security representative had been in the courtroom.
"You cannot be a complainant and at the same time investigate the accused," said lawyer Reving Yasin.
Latif Sheikh Mustafa, a legal expert, said that those who "became an Asayish agency in the criminal proceeding", called it a dangerous event that "nothing like this happened even during Saddam Hussein's era".
"Asayish agencies, the police, Anti-Terror Units and the Asayish Council are neutral investigation agencies and cannot be the complainant," he said. "They should not have representatives, otherwise there should not be any security official in the courtroom, so that the accused may speak freely."
"This is a farce. Briefly, this case is a political case and it is using the courts for state terrorism. Especially in Duhok and Badinan, where people should no longer even think about demonstrations," said Latif Sheikh Mustafa.
On the 5th of March 2021, the volunteer team of lawyers for the Badinan detainees' case, in the Regional Court of Cassation, appealed the Court of Cassation’s decision, which upheld the sentence of 6 years imprisonment for 5 activists and journalists. They demanded that "the file be closed" and that the sentences be "dismissed".
Lawyers demand the case to be transferred to the Criminal Expanded Commission this time, which consists of 14 judges under the leadership of the Court of Cassation, and not be returned to the court's second Criminal Commission, which had initially decided to uphold the sentence and is made up of only 5 judges.
"In my opinion, it is not reasonable for the head of The Court of Cassation to make a request and not have the case given to The Criminal Expanded Commission," judge Abdul-Karim Haider told PEREGRAF. "If it doesn't get the case, it means that they have done this intentionally and they do not want 14 judges to see the case, but only 5 judges will see it."
"If there is a legal violation, the law has established a way for review. In case of a violation in the Criminal Court, The Court of Cassation shall correct it. But the judges must be of a high standard. But if one of the Court of Cassation Commission violated The General Panel will do the correction," judge Abdulkarim Haider said.
The judge pointed out that "in general, to correct the decisions of The Criminal Commission, the same group sees who made the decision", but he believes that "because of the importance of this case and because the public is waiting to know the culmination of the case, it is possible for the head of The Criminal Expanded Commission to send this case to The General Assembly, as it more appropriate for 14 judges to oversee the case and make decisions, rather than only 5 judges".
Sherwan Sherwani was arrested on October 7, 2020, while Guhdar Zebari, Ayaz Karam, Shivan Omar and Hariwan Issa were arrested on October 22, 2020, after social media posts echoing protesters’ demands and complaints, including complaints about delays in paying the salaries of state employees and allegations of government corruption. Still, dozens of other activists and protesters behind bars in Erbil and Duhok waiting for their trials.