London: In a somewhat stinging, apparently unanimous 16-page indictment issued on February 22, the United Nations’ Working Group on Arbitrary Detention (WGAD) found the Narendra Modi government culpable on every count on complaints made in the matter of extraditing and imprisoning without a trial British businessman Christian Michel.
It also warned there will be consequences if the Indian government did not comply with its direction to release him immediately. The order is likely to be made public later this week, but this correspondent has obtained advanced sight of it.
The five-member Working Group comprised eminent jurists drawn from as many different continents. They were Australian Leigh Toomey (chair-rapporteur), Latvian Elina Steinerte (vice-chair), South Korean Seong-Phil Hong, Zambian Mumba Malila and Ecuadorian Miriam Estrada.
There is no discernible dissent in the panel which handed down what the UN diplomatically terms an “opinion”. The Working Group affirmed:
“The deprivation of liberty of Christian James Michel by the Government of India, being in contravention of articles 3, 9, 10 and 11(1) of the Universal Declaration of Human Rights (UDHR) and articles 9(3), 10(1), 14(1), (2) and (3) (b), (c), (d) and (g) of the International Covenant on Civil and Political Rights (ICCPR), is arbitrary and falls within category III (which is the most serious level of offence in this bracket).”
India signed the UDHR in 1945 and ratified the ICCPR in 1979 (when, incidentally, BJP’s Atal Bihari Vajpayee was external affairs minister).
On May 8, 2020, the Working Group sent the allegations outlined in Michel’s petition to the Indian government. The latter responded on June 26, 2020. WGAD recorded: “The Government of India disputes the allegation that due process was not followed in Mr Michel’s extradition.” It further noted: “The Government denies any procedural deficiencies in the presentation of the extradition request.” Clearly, these protestations were inadequate in the eyes of the rapporteurs.
India could face penalties
The opinion said: “The Working Group has in its jurisprudence established the ways in which it deals with evidentiary issues, which establishes the evidentiary position for claims to succeed in human rights cases.” This means that if a complaint establishes a prima facie case for breach of international law constituting arbitrary detention, “the burden of proof should be understood to rest upon the Government if it wishes to refute the allegations”. The Working Group clarified: “Mere assertions by the Government that lawful procedures have been followed are not sufficient to rebut”.
The Indian Ministry of External Affairs’ spokesman’s reaction to the UN opinion on February 26 was thus inaccurate. WGAD may not be a judicial body; but there are – as the opinion unambiguously indicates – penalties for non-compliance.
Michel, an arms and aviation consultant who was a resident of Dubai, was controversially bundled out of the UAE and has been in custody for 27 months in Delhi for allegedly paying bribes to the Gandhi family of the Congress party to secure a Rs 3,600 crore VVIP helicopter deal for Anglo-Italian firm AgustaWestland (AW). He has consistently denied the charge.
The judgement emphatically stated:
“The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be for the Government of India to release Mr Michel immediately and for both Governments to accord him an enforceable right to compensation and other reparations, in accordance with international law.”
Without speculating on a figure, Michel’s French advocate Francois Zimeray maintained: “No doubt what happened is very damaging.” The recompense if applied to European standards could potentially run into millions of pounds.
The order furthermore said: “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 of India to take urgent action to ensure the immediate release of Mr Michel.”
WGAD also urged the Modi regime “to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr Michel and to take appropriate measures against those responsible for the violation of his rights.” This really tightens the screw, as in the present Indian circumstances it could only have happened by virtue of authorisation from top officials.
The panel also asked the Indian government “to provide it with information on action taken in follow-up” on, among others, “(a) Whether Mr Michel has been released and, if so, on what date; (b) Whether compensation or other reparations have been made to Mr Michel; (c) Whether an investigation has been conducted into the violation of Mr Michel’s rights and, if so, the outcome of the investigation.”
It also suggested “a visit by the Working Group” for “technical assistance”. This, in diplomatic parlance, is quite strong, implying, ‘if you don’t do it, we’ll make you do it’. It asked Michel’s British and French lawyers who had moved the petition on his behalf to monitor the Indian response and keep it posted.
Evidence proffered by Michel
The evidence proffered before WGAD had laid out: “After the BJP won the (2014) elections, the Indian prime minister denounced the involvement of the Congress party and the Gandhi family in the AW affair.” It added that after the UAE refused India’s request for Michel’s extradition in May 2017, “Indian authorities visited Mr Michel in Dubai (where he was resident), in the presence of Emirati officials, and interrogated him for hours before getting him to sign statements implicating the Gandhi family, under threat of further prosecution.”
In January 2018, Michel was, it seems, falsely informed that the Indian ambassador in the UAE (then Navdeep Suri) wished to meet him. Instead, a deputy director of the Indian Central Bureau of Investigation (said to be Rakesh Asthana) confronted him. Asthana “allegedly attempted to coerce Mr Michel into signing a 20-page pre-drafted statement admitting corruption activities related to the AW case and threatened him with prosecution if he refused to sign”, Michel’s lawyers submitted. The Briton did not oblige; hence he was forcibly taken to India.
The Working Group heard: “On 4 December 2018, Mr Michel was reportedly handcuffed, blindfolded and transported by a private jet to India, in a hurried and unlawful manner which prevented him from challenging any decision.”
In Delhi he was interrogated by the CBI and the Enforcement Directorate for a month, the Working Group was told. It was also apprised that he “was reportedly interrogated every day for up to 21 hours… He was thus only allowed to sleep for three hours a night while some nights he could not sleep at all… On 5 January 2019, after having been interrogated for 600 hours over a 30-day period, Michel was placed in custody at Tihar Prison”.
In Tihar, he has been “in total isolation”, “solitary confinement” or “de facto solitary confinement” and “prevented from leaving his cell and from obtaining adequate food supplies, which seriously jeopardised his health and physical integrity.” He reportedly lost more than seven kilos in weight and developed kidney stones, “having been unable to drink for several days during temperatures exceeding 51 degrees C”.
The Working Group decided to refer the alleged inhuman treatment to the UN Special Rapporteur on Torture “for appropriate action”.
Analysing the depicted violations, the Working Group said Michel “has been detained without any real or proper basis”, that “the extradition to India has not followed any due process and is an attempt to override international protocols relating to extradition” and that “it is unlikely that there will be any form of a trial, in the strict sense according to a process following the rule of law, as there is no proper legal basis for the detention, and no offence committed”. It inferred: “Mr Michel is reportedly being detained with a view to coercing him to provide false evidence of unlawful conduct by members of the current Government’s political opponents.”
The analysis pointed out: “Various procedural deficiencies also appear to be present in the papers submitted (by India) for the extradition hearing (in Dubai); the chargesheets were reportedly not attested by the UAE embassy in Delhi and the extradition request was issued not by the competent authority in India, which is the Minister of Home Affairs, but by the Minister of External Affairs.”
In conclusion, the verdict requested New Delhi to report back “within six months of the date of transmission of the present opinion” or by August 21 next. It then rather firmly said, “[T]he 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 mean informing “the Human Rights Council (HRC, the supreme 47-member inter-governmental body in this sphere) of progress made in implementing its recommendations, as well as any failure to take action”.
Acquitted by Italian courts
The chief executive officers of AgustaWestland and its parent Italian company Finmeccanica, who were accused in the matter, were acquitted by an Italian court in October 2014. In April 2016, the Milan Court of Appeal found them guilty. This adjudication was overturned in December 2016 by the Italian Court of Cassation. In January 2018, the Court of Appeal of Busto Arsizio upheld this. Finally, the Italian Court of Cassation provided ratification in May 2019.
In effect, Michel was completely exonerated. One of the judges remarked the imputation against Michel was “an accusatory hypothesis” and that there was “conclusively no evidence of corruption”.
So, the Indo-UAE swoop on Michel was pre-emptive since the prevailing Italian decree when he was smuggled to Delhi on December 4, 2018 was entirely in his favour. Certainly, after the May 2019 judgement, his capture and detention could have been rectified by a discharge.
The MEA spokesman Anurag Srivastava’s statement that the Working Group’s findings “are based on limited information, biased allegations from an unidentified source” does not hold up, as the proof presented and the basis of this – as the opinion shows – is copious and the identities of the petitioning lawyers have been in the public domain since last year.
Srivastava said, “The Government of India, therefore, rejects the opinion rendered by the Working Group.”
Michel’s Indian advocate Aljo Joseph says intends to move Indian courts for his client’s release forthwith. He said: “I will be initiating follow-up action soon after getting a copy of the judgement officially.”
Michel’s wife Valerie, who lives in France, stated: “My husband has been detained and tortured under the worst possible conditions, with no regard for his basic rights and dignity.”
She stressed: “I hope the UK government will do the maximum to put an end to this nightmare endured by a British citizen.”
Although Michel wrote a 35-page letter to British Prime Minister Boris Johnson in January, the Foreign Office re-issued a statement it has been distributing since December. “Our staff continue to support Christian Michel, who has been detained in Delhi since 2018, and regularly raise his case with the Indian authorities. The Foreign Secretary raised it with India’s Minister of External Affairs, Dr Jaishankar, during his visit to India in December 2020.”
10 Downing Street was asked if Britain is avoiding stronger language on the subject, lest it jeopardises the trade deal currently being negotiated with India. No comment was forthcoming.
Ashis Ray is a former editor-at-large of CNN. He currently analyses international affairs on BBC.