This opinion from the UN Working Group on Arbitrary Detention finds that Khurram Parvez is arbitrarily detained and that his deprivation of liberty is in contravention of articles 2, 7, 9, 11, 19 and 20 of the Universal Declaration of Human Rights and 2, 9, 14, 15, 19, 22 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and falls within categories I, II, III and V, requests the Government of India to take the steps necessary to remedy the situation of Mr. Parvez without delay, release Mr. Parvez immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.
Topics: arbitrary detention, Khurram Parvez
Terms: Unlawful Activities (Prevention) Act, violation of freedom of opinion, expression and association, violation of right to the presumption of innocence and the right against self-incrimination, violations of due process and fair trial rights, reprisals, discrimination based on political or other views
On 13 December 2022, the Working Group transmitted the allegations from the source to the Government under its regular communications procedure. The Working Group requested the Government to provide, by 13 February 2023, detailed information about the situation of Mr. Parvez and to clarify the legal provisions justifying his detention, as well as its compatibility with the obligations of India under international human rights law, in particular with regard to the treaties ratified by the State. Moreover, the Working Group further called upon the Government to ensure his physical and mental integrity. The Working Group regrets that it did not receive a response from the Government to that communication.
...The Working Group has found that non-bailable offences are in effect mandatory pretrial detention. In its jurisprudence, the Working Group has confirmed that mandatory pretrial detention, in the present case, articles 120A and 121 of the Indian Penal Code, are in violation of a State’s obligations under international human rights law. As the Human Rights Committee has stated, pretrial detention should not be mandatory for all defendants charged with a particular crime, without regard to individual circumstances, taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime. The Working Group recalls the view of the Human Rights Committee, as well as its own recurrent findings, that pretrial detention must be the exception and not the rule, should be ordered for as short a time as possible and must be based on an individualized determination that it is reasonable and necessary.
Courts must examine whether alternatives to pretrial detention would render detention unnecessary in the case in question. Mandatory pretrial detention deprives judicial authorities of one of their essential functions as members of an independent and impartial tribunal, namely, assessing the necessity and proportionality of detention in each case. The imposition of mandatory pretrial detention for certain offences undermines the presumption of liberty and reverses the burden of proof, so that those subject to ongoing criminal proceedings are automatically detained without a balanced consideration of non-custodial alternatives to detention. In the present case, the Working Group concludes that an individualized determination of Mr. Parvez’s circumstances was absent under articles 120A and 121 of the Indian Penal Code and that, as a result, his detention lacked a legal basis and was ordered in violation of article 9 (3) of the Covenant and article 9 of the Universal Declaration of Human Rights. The Working Group considers that Mr. Parvez’s prolonged pretrial detention illustrates the importance of this fundamental legal principle of personal liberty.
Based on the foregoing, the Working Group thus finds that the Government failed to establish a legal basis for Mr. Parvez’s detention. His detention is thus arbitrary under category I.
...The Working Group recalls that article 19 (2) of the Covenant provides that everyone has the right to freedom of expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, and covers political discourse, commentary on public affairs, discussion of human rights and journalism. The right to freedom of expression protects the holding and expression of opinions, including those that are critical of, or not in line with, government policy. The Human Rights Council has called on States to refrain from imposing restrictions under article 19 (3) that are not consistent with international human rights law. In accordance with articles 1 and 6 (c) of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and to draw public attention to the observance of human rights. The Working Group considers that Mr. Parvez’s conduct fell within the right to freedom of opinion and expression and freedom of association protected under articles 19 and 20 of the Universal Declaration of Human Rights and articles 19 and 22 of the Covenant and that he was detained for exercising these rights. The Working Group is not convinced that the permissible restrictions on the rights set out in articles 19 (3) and 22 (2) of the Covenant would apply in the present case and that prosecuting Mr. Parvez was necessary to protect a legitimate interest under these provisions.
Moreover, highlighting the broad definition of “unlawful activity” in the Unlawful Activities (Prevention) Act, the source refers to several United Nations experts who have expressed their concern that the vague definition of “unlawful activities” and “membership of terrorist organizations” weakens judicial oversight by conferring discretionary powers upon State agencies and diminishes civil liberties in the process. The experts were also concerned by the designation of individuals in the Unlawful Activities (Prevention) Act as terrorists in the context of ongoing discrimination directed at religious and other minorities, human rights defenders, and political dissidents, against whom the law has been used. The source further notes that the overbroad and ambiguous definition of a “terrorist act” under this law differs substantially from the definition advanced by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. The Working Group recalls that the principle of legal certainty under international law enshrined in article 15 (1) of the Covenant and article 11 (2) of the Universal Declaration of Human Rights require that criminal laws must be sufficiently precise, so it is clear what types of behaviour and conduct constitute criminal offence and what be the consequences of committing such an offence.
Based on the above, the Working Group finds that the detention of Mr. Parvez resulted from his legitimate exercise of freedom of opinion, expression and association, as protected by articles 19 and 22 of the Covenant and articles 19 and 20 of the Universal Declaration of Human Rights, and was therefore arbitrary, falling under category II. The Working Group refers the case to the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
...As such, it appears that the possibility for Mr. Parvez of being granted bail by the court for offences under the Unlawful Activities (Prevention) Act is extremely unlikely. The Working Group is concerned that section 43 D (5) of the Unlawful Activities (Prevention) Act could seriously encroach the right to the presumption of innocence and the right against self-incrimination because detainees will have to show the absence of reasonable grounds, notwithstanding that they will not know the grounds for arrest proffered by the State.32 Several other human rights experts have also expressed this concern.
The Working Group also finds that Mr. Parvez’s right to be informed promptly and in detail of the charges against him under article 14 (3) (a) of the Covenant has been violated. The source submits that while Mr. Parvez was arrested on 22 November 2021, it was only in May 2022, that a preliminary charge sheet was filed. His trial is yet to commence. The right to be tried without undue delay is enshrined in article 14 (3) (c) of the Covenant. The reasonableness of any delay in bringing a case to trial must be assessed in the circumstances of each case, taking into account the complexity of the case, the conduct of the accused and the manner in which the matter was handled by the authorities. The Working Group finds that the delay in bringing Mr. Parvez to trial is unacceptably long, in violation of articles 9 (3) and 14 (3) (c) of the Covenant and principle 38 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Given the Working Group’s finding that Mr. Parvez’s detention was arbitrary under category II because it resulted from the peaceful exercise of his rights, any delay in trying his case is unreasonable. The Human Rights Committee has stated that an important aspect of the fairness of a hearing is its expeditiousness, and that in cases where the accused is denied bail by the court, he or she must be tried as expeditiously as possible. The delay in the present case is exacerbated as Mr. Parvez was not given a bail hearing as discussed above.
Furthermore, the Working Group considers that the source has prima facie established that Mr. Parvez did not have access to a lawyer from the outset of his detention, that is, following his initial arrest as well as at other key stages, including during his interrogations in Srinagar before his transfer to Delhi. All persons deprived of their liberty have the right to legal assistance by counsel of their choice, at any time during their detention, including immediately after the moment of apprehension, and such access must be provided without delay. The source also alleges that the time permitted for Mr. Parvez to meet and consult with his lawyer is inadequate and that there are considerable practical difficulties in arranging these meetings.
The effectiveness of legal counsel is fundamentally related to the principle of equality of arms, as enshrined in article 11 of the Universal Declaration of Human Rights and article 14 of the Covenant, which protects the right to have adequate time and facilities for the preparation of one’s defence and to communicate with counsel of one’s own choosing. The failure to provide Mr. Parvez with a lawyer from the outset of his detention, and adequate access to a lawyer, thereafter, seriously impaired his ability to challenge his detention and mount an effective defence. These violations of due process and fair trial rights are all the more egregious considering that Mr. Parvez is facing serious terrorism charges and could potentially be sentenced to death. The Working Group recalls the guidance of the Human Rights Committee that it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of proceedings in cases involving capital punishment.
...In these circumstances, the Working Group finds that Mr. Parvez’s right to adequate time and facilities for the preparation of his defence and right to communicate with counsel of his choosing under article 14 (3) (b) of the Covenant, and principles 17 (1) and 18 (1) and (2) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment was violated, as well as his right to equality before courts and tribunals and to a fair trial, pursuant to article 14 (3) (e) of the Covenant.
Noting all the above, the Working Group concludes that the violations of Mr. Parvez’s right to a fair trial are of such gravity as to give his detention an arbitrary character under category III.
...With regard to these non-cumulative indicators, the Working Group notes a pattern of intimidation against Mr. Parvez, characterized by arrest, detention, harassment, raids and seizure of material. Reportedly, this is also not the first time that Mr. Parvez has been targeted by the authorities. He was allegedly arrested without a warrant and detained in 2016 for 76 days, two days after he was prevented from attending the thirty-third regular session of the Human Rights Council in Geneva. Several human rights experts publicly called for his immediate release, noting that the travel ban and his detention were “a deliberate attempt to obstruct his legitimate human rights activism”. In November 2022, the experts called on the Government of India to end reprisals and intimidation of activists and civil society organizations, including activists like Mr. Parvez, who share information and testimony on human rights violations with United Nations human rights bodies and mechanisms. Reprisals against Mr. Parvez and the Jammu and Kashmir Coalition of Civil Society for cooperating with OHCHR have been noted in three report of the Secretary-General on allegations of reprisals (2020, 2021 and 2022).
...Furthermore, in the discussion above concerning category II, the Working Group established that Mr. Parvez’s detention resulted from the peaceful exercise of his rights under international law. When detention results from the active exercise of civil and political rights, there is a strong presumption that the detention also constitutes a violation of international law on the grounds of discrimination based on political or other views.
For these reasons, the Working Group finds that Mr. Parvez was deprived of his liberty on discriminatory grounds, owing to his status as a human rights defender and on the basis of his political or other opinion. His deprivation of liberty violated articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, and was arbitrary under category V. The Working Group refers the present case to the Special Rapporteur on the situation of human rights defenders.
Mr. Parvez is a longstanding human rights defender who has been advocating for human rights in the Kashmir Valley region, both at a domestic and international level, reportedly since 1996. The Working Group is seriously concerned about the chilling effects of his arrest and prolonged detention on civil society, human rights defenders and journalists in India who are exercising their fundamental rights to freedom of expression, opinion and association in conducting their work.
The Working Group would welcome the opportunity to work constructively with the Government to address arbitrary detention, as well as the opportunity to conduct a country visit to India, and looks forward to a positive response to its request for a country visit dated 22 February 2018.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Khurram Parvez, being in contravention of articles 2, 7, 9, 11, 19 and 20 of the Universal Declaration of Human Rights and 2, 9, 14, 15, 19,
22 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and falls within categories I, II, III and V.
The Working Group requests the Government of India to take the steps necessary to remedy the situation of Mr. Parvez without delay and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Parvez immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law. In the current context of the global coronavirus disease (COVID-19) pandemic and the threat that it poses in places of detention, the Working Group calls upon the Government to take urgent action to ensure the immediate release of Mr. Parvez.
The Working Group urges the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Parvez, and to take appropriate measures against those responsible for the violation of his rights.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers the present case for appropriate action to: (a) the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; (b) the Special Rapporteur on the situation of human rights defenders; (c) Special Rapporteur on the rights to freedom of peaceful assembly and of association; and (d) the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
The Working Group requests the Government to disseminate the present opinion through all available means and as widely as possible.
In accordance with paragraph 20 of its methods of work, the Working Group requests the source and the Government to provide it with information on action taken in follow-up to the recommendations made in the present opinion, including:
(a) Whether Mr. Parvez has been released and, if so, on what date;
(b) Whether compensation or other reparations have been made to Mr. Parvez;
(c) Whether an investigation has been conducted into the violation of the rights of Mr. Parvez, and, if so, the outcome of the investigation;
(d) Whether any legislative amendments or changes in practice have been made to harmonize the laws and practices of India with its international obligations in line with the present opinion;
(e) Whether any other action has been taken to implement the present opinion.
...The Working Group requests the source and the Government to provide the above-mentioned information within six months of the date of transmission of the present opinion. However, the Working Group reserves the right to take its own action in follow-up to the opinion if new concerns in relation to the case are brought to its attention. Such action would enable the Working Group to inform the Human Rights Council of progress made in implementing its recommendations, as well as any failure to take action.
[Adopted on 28 March 2023]