Beirut, September 25,
2019) – A close study of appeals court decisions in terrorism-related cases(
in Iraq shows that
judges in close to two dozen cases in an 18-month period appeared to ignore
torture allegations or to rely on uncorroborated confessions, Human Rights
Watch said today. Some of the torture allegations had been substantiated by
forensic medical exams, and some of the confessions were unsubstantiated by any
other evidence and were apparently extracted by force, including by torture.
In each of these cases, the trial courts took the torture allegations
seriously, found them credible, assessed the evidence, and acquitted the
defendants. These cases show that gaps in Iraq’s criminal
justice system extend to the highest level. Under international law, courts
should never rely on evidence obtained by torture. Member states of the Global
Coalition To Defeat ISIS (also known as the Islamic State), who are meeting on
September 26, 2019 on the margins of the UN General Assembly session in New
York to discuss accountability measures for ISIS crimes, should agree not to
transfer ISIS suspects from Syria to Iraq until the Iraqi justice system can
ensure that criminal prosecutions meet international fair trial standards and
until the government imposes a death penalty moratorium.
“Our investigation into a large number
of Iraq’s court rulings found what may be repeated miscarriages of justice in
terrorism cases,” said Lama Fakih, acting Middle
East director at Human Rights Watch. “How can Iraqi lawyers and
counterterrorism judges stand by and watch this unfold?”
Human Rights Watch reviewed the appeals court case files in 27 decisions issued
between September 2018 and March 2019 by the Federal Court of Cassation’s
criminal committee. In 21 cases, the appeals court overruled the trial court’s
acquittal and ordered retrials; in two cases, it upheld the acquittal; and in
four cases, it upheld the trial court’s conviction but increased the sentences.
Human Rights Watch was unable to confirm the outcome of the cases following
retrial.
Of the 27 terrorism cases, 23 were prosecuted under Iraq’s counterterrorism
law, three under the penal code, and one under the Weaponry Law No. 51 of 2017.
The veracity of the court documents was confirmed by an independent Iraqi legal
expert.
Criminal courts in Iraq are divided into courts for serious offenses, here
referred to as “criminal courts,” and courts of minor offenses. The
public prosecution, defendant, and complainant each have the right to appeal an
acquittal, conviction, or sentence in a criminal court ruling. Appeals are
heard by the criminal committee, consisting of a presiding judge and a minimum
of four other judges, within the Federal Court of Cassation in Baghdad. The
criminal committee automatically reviews all cases with a sentence of 25 years, life imprisonment, or death.
The committee may uphold a decision or overrule it and return the case to the
trial court for a retrial or a repeat judicial investigation.
In six cases, the defendants alleged at trials that investigators had tortured
or otherwise coerced them into making a confession. The criminal committee
overruled the acquittals and ordered retrials, relying on the recanted
confession and mentioning evidence either not considered during the defendant’s
trial or dismissed as unreliable. In two cases, the confession was the sole
evidence. It was unclear from court documents whether trial judges had
investigated those who had allegedly tortured or otherwise coerced the
defendants, or if judicial investigators, police, or the public prosecution
conducted criminal investigations into the allegations of torture and other
crimes toward defendants who had made a complaint.
In two cases, the defendant submitted a forensic medical report that found
signs he had been “subjected to external force,” yet the criminal
committee ignored or dismissed the report. In one case, the criminal committee
stated, “What the defendant’s medical report mentions does not affect the
value of the evidence available in the case,” though the allegedly coerced
confession was the only evidence presented at the trial.
While the issue of torture was not explicitly raised in seven cases, criminal
courts in Anbar, Karkh, and Kirkuk acquitted defendants because no evidence was
presented beyond their confessions, the case files showed. In each case, the
criminal committee found that the disputed confession was sufficient evidence
to proceed with the charges, and ordered a retrial.
These cases raise concern, particularly in light of comments made by an Iraqi
judicial expert and two experts on Iraqi law and on terrorism cases. They all
said that in their experience, when the criminal committee overruled an
acquittal and ordered a retrial, it was sending a clear message that the trial
court should change its ruling. They said that these retrials could not be seen
as a neutral judicial order to reassess the facts of the case, but rather an
implicit order to find the defendant guilty.
Human Rights Watch wrote to Iraq’s chief justice on June 10, 2019 with the
findings. The High Judicial Council, which manages and supervises the federal
judiciary’s affairs, responded on June 20, asking for the details of the cases
reviewed, which Human Rights Watch provided on June 26. It also stated that,
“independent experts were unable to properly assess the decisions taken by
the distinguished judges at the Federal Court of Cassation because they lacked
the appropriate expertise.” On July 18, it shared with Human Rights Watch
an order from the chief justice to examine the cases Human Rights Watch shared
but had not provided more information by the time of publication.
In line with international legal standards and Iraqi criminal procedures,
Iraq’s High Judicial Council should issue
guidelines obliging judges to investigate all credible
allegations of torture and the security forces responsible, and to transfer
detainees to different facilities immediately after they allege torture or
ill-treatment, to protect them from retaliation. It should reiterate to judges
that they are obliged to dismiss any evidence obtained by torture. Judicial
authorities should investigate and determine who was responsible for any
torture, punish abusive officers, and compensate the victim.
The High Judicial Council should immediately review all terrorism-related
decisions issued by the criminal committee since the beginning of 2018,
followed by consideration based on the result as to whether a full review since
2005 is necessary, and remedy any miscarriages of justice that it identifies.
The authorities should also ensure that there is a clear legal basis for
detentions; that all detainees have access to legal counsel, including during
interrogation; that they appear before a judge within 24 hours of their initial
detention and at regular intervals thereafter, with the judge determining the
legality and necessity of their continuing detention; and that detainees are
moved to facilities accessible to government inspection, and with regular
access by independent monitors and relatives.
The US-led coalition and other countries with nationals facing potential
terrorism trials in Iraq should press the High Judicial Council to share the
findings of any review it conducts into Iraq’s Federal Court of Cassation and
ensure implementation of reforms to address the serious flaws raised in this
report.
“This investigation shows that detainees in Iraq face a significant risk
of unfair trial at every stage of the criminal justice process,” Fakih
said. “The High Judicial Council needs to take a very close look at the
terrorism-related decisions of the criminal committee.”
Background
As of early 2018, Iraq authorities
were holding an estimated 19,000 men and
boys on charges of ISIS affiliation. Authorities have not
responded to Human Rights Watch’s repeated requests to share updated statistics
on those in custody. As of early 2019, according to an Iraqi security official,
the US-backed Syria Democratic Forces (SDF) in northeast Syria were holding an
estimated 20,000 Iraqis detained during
fighting against ISIS, as well as over 2,000 non-Iraqis who are at risk of
being transferred to Iraq for investigation and possible prosecution as ISIS
members. At least 900 Iraqis with alleged links to ISIS have already been transferred from
northeast Syria to Iraq in recent months.
Given the findings, and the risk of torture and unfair trials leading to the
death penalty, neither the Syrian Kurdish forces nor any country should
transfer detainees to Iraq for prosecution for terrorism or related crimes.
Despite extensive credible reports of torture in detention, Iraqi judges
routinely do not investigate these
allegations.
Flaws in the Federal Court of Cassation
While the defendants’ arrest dates were not cited in most cases, one showed that
the defendant had been arrested in March 2016 but only brought to trial in June
2017. The criminal committee overruled his acquittal in September 2018. While
one case went from the trial to the appeals stage in just under six weeks, some
cases took as long as a year or more. Two cases tried in 2018 related to crimes
allegedly committed in 2006.
The right to a fair trial and the absolute prohibition of torture are set out
in human rights treaties ratified by Iraq, including the International Covenant
on Civil and Political Rights and the Convention against Torture. Key
guarantees include that courts should not consider any evidence obtained by
torture; that no defendant should be compelled to testify against themselves or
confess guilt; and that defendants should have adequate time to prepare their
defense, be able to consider and challenge the evidence and witnesses used
against them, and present their own evidence and witnesses.
In March 2019, the Interior Ministry endorsed new Standard Operating
Procedures for criminal investigations. These include articles
to strengthen the defense, including by ensuring defense lawyers’ access to
detained clients, case files, and interview records. The Interior Ministry
should ensure that investigators are fully trained on the procedures and that
they are put into practice across all detention facilities and during all
investigations.
Torture Allegations
In October 2017, a man went on trial at Anbar Criminal Court for ISIS
affiliation in 2014 in Fallujah, according to his case file. The defendant
recanted his confession, saying he had been tortured. Witnesses testified that
he had no links to ISIS. The court acquitted him, but the criminal committee
overruled the acquittal in October 2018, finding that the confession was
credible, and ordered a retrial. It found that, “the accused has confessed
during the investigation and in the presence of all legal guarantees of
committing the crime. Therefore, the evidence against him as previously
described is sufficient and convincing enough to convict and sentence
him.” It said nothing about the torture allegation.
In November 2018, the Karkh branch of the Central Criminal Court in Baghdad
acquitted a man accused of complicity in the murder of an Iraqi Security Forces
officer and of injuring others in 2013. The court ruled that his confession,
the sole evidence, was not enough to convict him, citing an attendance sheet
showing that he had been in a university class at the time of the incident, and
witnesses who stated the same. The defendant said he had been coerced into
confessing, and presented a forensic medical report finding that he had been
“subjected to external force.”
The Federal Court of Cassation’s criminal committee found in March 2019 that
the confession had been “clear and detailed” and cited statements
made almost five years after the attack by other two officers who had been
present at the time of attack. It stated that the forensic medical report
findings did not affect “all the other evidence” and ordered a
retrial.
In January 2018, the Anbar Criminal Court tried a man for ISIS affiliation and
participation in two specific terrorist attacks. The defendant recanted his
confession, stating he had been tortured, and the court, determining that there
was no other evidence of his alleged links to ISIS, acquitted him.
The criminal committee overruled the decision in November and ordered a
retrial, finding that the confession was credible because the defendant made it
in the presence of the general prosecutor and his state-appointed lawyer, and
citing statements made by plaintiffs not mentioned during the trial. It added
that, “his confession was not refuted by any medical report that confirmed
that his confession was forced,” and did not address the torture
allegations deemed credible by the trial court anywhere within the decision.
According to the case file, in February 2018, a man charged with ISIS
affiliation at the Anbar Criminal Court stated that he had been tortured into
confessing. His brother, a juvenile in custody and accused of another crime,
testified against him. The court said that it could not rely on his brother’s
statement because he was a juvenile himself on trial, and that it was
suspicious that his own confession to investigators was identical – word for
word – to the confession he later made to the investigative judge. It reasoned:
After careful consideration of the facts of the case and evidence obtained in it, the court found that the accused’s statements given to the investigator and the investigative judge were the same, word-for-word, and that the statements given by the accused as a witness, and who is the brother of the accused mentioned above, cannot be accepted since it came from a juvenile defendant, hence it cannot be admitted as evidence in a capital crime.
The criminal committee overruled the decision,
finding both the defendant’s confession and his brother’s statements credible,
and ordered a retrial.
In January 2019, the Karkh court acquitted a man charged with ISIS affiliation,
the case file shows. He recanted his confession at trial and presented a
forensic medical report in which the doctor had found that he had been
subjected to “external force.” A witness who had implicated the
defendant as a member of ISIS also recanted. The court acquitted him for lack
of evidence. In April, the criminal committee overruled the acquittal and
ordered a retrial, referencing the defendant’s confession while ignoring the
forensic medical report, and also relying on the retracted witness statement
and two security agency reports that were not mentioned at trial.
On April 1, 2019, Iraq’s High Judicial Council told Human Rights Watch that
Iraqi courts had investigated 275 complaints against investigative officers by
the end of 2018 in both terrorism and non-terrorism cases. The High Judicial
Council stated that 176 of the cases have been “resolved,” while 99
cases were still being addressed. The council did not indicate what the term
“resolved” meant in this context, nor how many of the 176 cases were
being further investigated or had been dismissed.
Confession-based Prosecution
In one case in which the criminal committee ordered a retrial solely on the
basis of a confession, in February 2019, it found that:
The decision issued by the Karkh Criminal Court to drop the charge against the accused and release him is incorrect and against the law as the accused had explicitly, and with the availability of all legal guarantees consisting of the presence of the deputy public prosecutor and the appointed lawyer, confessed to the crime. The accused confessed to belonging to a terrorist group and to have continued supporting it. Therefore, there is sufficient and convincing evidence to convict him.
In two cases, the additional evidence
mentioned by the criminal committee was a single witness statement against the
defendant that had not been presented at his trial. In a November 2018 case,
the Risafa branch of the Central Criminal Court acquitted a man accused of
selling weapons to the Islamic State because his confession was the sole piece
of evidence against him. The criminal committee said a witness statement that
had not been considered at trial was enough to substantiate the charges and
ordered a retrial. In two other cases, the additional evidence the criminal
committee relied on was a witness statement that did not implicate the
defendant.
Extended Sentences
In four of the 23 cases in which defendants were convicted under the
Anti-Terrorism Law No. 13 of 2005, two received 15-year sentences and two life
sentences. Upon appeal by the prosecution in two cases in an effort to increase
the sentences, and the automatic appeal in the life sentence cases, the
criminal committee ordered an unspecified increase in sentencing which in the
case of life sentences could only be death. The committee said the initial
sentences had been too light. One of the cases involved an elderly man
sentenced to 15 years because of his age who was accused of working in a Mosul
mosque and of pledging support to ISIS in religious speeches.
In two of the 27 cases, the criminal committee upheld a decision to acquit the
defendants, in one case based on the defendant’s claim that he had been coerced
into confessing. It was unclear from the court documents whether the judges
initiated any investigations into the allegations of coercion.
Exonerating Evidence
In December 2018, according to court documents, the Karkh branch of the Central
Criminal Court in Baghdad acquitted three men charged under the penal code for
detonating a car bomb targeting Iraqi Security Forces in 2005. All three men
recanted their confessions and the court said it had evidence that US forces
had been behind the explosion and had claimed responsibility. It also found
that the men’s confessions diverged from one another’s significantly. In March
2019, the criminal committee overruled the acquittals, saying the men had
confessed to Al Qaeda membership in the presence of a prosecutor and their
appointed lawyer, and ordered a retrial. It stated that:
Upon examination and deliberation, it is evident from the facts of the case that the defendants have explicitly confessed to belonging to the terrorist Al Qaeda group and to carrying out several terrorist attacks, one of which is the crime at hand, in the presence of a member of the public prosecution and the appointed attorney. Their confessions were consistent with the course of the investigation, and the bomb being detonated by American troops does not affect the accused’s confessions. Therefore, there is sufficient and convincing evidence to convict them.
In December 2018, the Karkh Criminal Court acquitted two men who were accused of detonating a bomb in 2011, court documents show, because both defendants recanted their confessions, which had been inconsistent. In addition, witnesses to the attack stated that both defendants had nothing to do with it. The court stated in its decision to acquit that:
Statements given by the injured complainants… show that they did not complain against the accused regarding this crime since they had nothing to do with the incident and since they already knew them as they are from the same area…. The court found that the evidence against the accused amounted only to their confessions written during the investigation, which they recanted. The court also found that the confessions were not validated by any legally admissible evidence. In addition to that, the court found that the confessions given by both accused were inconsistent with each other.
The criminal committee cited the confessions
and the exonerating witness statements, overruling the acquittal and ordering a
retrial.
Guilt by Association
In August 2018, the Karkh Criminal Court acquitted the only woman among the 27,
who was charged with ISIS affiliation based on her husband’s membership. The
criminal committee found that her acknowledgment that her husband had joined
ISIS, and fake documentation she had while trying to smuggle herself to Turkey
after he was killed, constituted enough evidence to convict her on terrorism
charges and ordered a retrial. It reasoned:
The accused had confessed during investigation, with the availability of legal guarantees, that she is the wife of a member of the terrorist group ISIS, and that after her husband was killed by the Peshmerga… an individual called her in order to transport them to Turkey, and she was given a fake civil identity card. They headed to Baghdad and were received by a defendant who owns a guesthouse and transports families from the ISIS terrorist group to safe areas. He took their photos and prepared fake IDs for the purpose of smuggling them out of Iraq, where they were arrested upon their attempt. Her confession was validated by witness statements of the arresting contingent and other witness statements, and the circumstantial evidence consisting of finding fakes IDs of the defendant. Therefore, there is sufficient and convincing evidence to convict and sentence her for the crime.
The criminal committee ruled that the fact that she was married to an ISIS member and had attempted to leave Iraq using false documentation was enough to secure a conviction under the Anti-Terrorism Law. If prosecuted for the crime of false documentation, the woman would have faced a sentence of as little as six months, But because she was tried under the Anti-Terrorism Law, she was instead potentially facing a sentence of up to 25 years in prison for being an accessory to a crime.
This article was first published on Human Rights Watch
