Saudi Arabia -Universal Periodic Review

Fourth session from 2nd to 13th February 2009

Report submitted by Al-Karama on 8 September 2008

1. Background

2. Arbitrary arrests and detentions

3. Torture

4. Justice: gaps and non-compliance with laws

5. Recommendations

1. Background
The Kingdom of Saudi Arabia was proclaimed on 23 September 1932. It is an absolute monarchywhere the king is both the Head of State, and the Head of Government. He also enacts laws andholds the function of servant to the two holy cities, Mecca and Medina. In accordance with theBasic Law, he has full authority over the army, the secret services (al-mabahit al-aama), the policeand the Mutawwa (Islamic police).

Opposition parties are not tolerated and, in general, any challenge to the authorities in power issuppressed. However, the alignment of the king with the American positions and the involvement ofthe country in the Gulf wars of 1991 and 2003, most notably through the presence of U.S. militaryon the territory, shocked many Saudis.

The participation of 15 Saudis in the attacks of 11 September 2001, and the presence of manycombatants in Afghanistan has placed the kingdom in a delicate situation. Externally, it is accusedof serving as a base for Islamist terrorism while, domestically, criticism vis-à-vis the alliance withthe USA is growing. Saudi Arabia has been the scene of many attacks.

After 11 September 2001, U.S. pressure on the country became more pronounced. Cooperationon the control of humanitarian associations and transfer of their funds by the two governments hasbeen strengthened. Many charitable organizations which benefited from the Kingdom's authorities'official support have been banned and their assets frozen.

The reform movement that emerged in the 90s faces difficulty in developing because of therepression taking place. Persons who dare become engaged in calling for constitutional reforms areprosecuted. Advocates defending civil liberties and policies are particularly affected, especially ifthey speak publicly through the Arab media.

Arbitrary arrests and detentions of Saudi citizens and foreigners are of a massive and systematicnature, and torture is widely practiced. Trials are usually unfair and convicts are often kept indetention after having served their sentences.

However, with Saudi civil society claims growing stronger, the king has contemplatedinstitutional and political reforms. A "basic law" concerning the rights and responsibilities ofgovernment was introduced by decree in 1992. A reform of the judiciary system was announced anda criminal procedure code promulgated in November 2001.

In March 1993, 14 administrative regions with local councils were created. In August 1993, acouncil of ministers (Advisory Council) was set up. Appointed by the king every 4 years, itsfunction is to assist the government. In June 2006, for the first time, six women were nominated forthis council. Since 2005, half of the ministers are elected while the other half is chosen by the king.The right to vote is only granted to men aged over 21. They also vote to elect municipal councillors.From 2009, women over 21 should also be allowed to vote.

Saudi Arabia has been a member of the Human Rights Council since May 2007; it has been aparty to the Convention against Torture since 23 September 1997 and submitted its initial report tothe Committee against Torture in 2001. The Advisory Council ratified the Arab Charter on HumanRights in April 2008.

2. Arbitrary arrests and detentions
Arbitrary detention without due process of law and without trial, which may last up to severalyears, is a major human rights problem in Saudi Arabia. According to Article 2 of the Code ofCriminal Procedure, the arrest or detention of any person must be in accordance and pursuant to thestatutory provisions, and the duration of such a detention must be determined by the competentauthority, the judicial authority in this case. Also, detention may only take place in areas that areintended for this purpose. Article 4 of the same law also explicitly provides for assistance andrecourse to a lawyer for those arrested and detained.
Alkarama regularly submits cases of arrests and arbitrary detentions to UN bodies. In most cases,particularly when it comes to people arrested for political reasons, they are carried out by agents ofthe general intelligence services (al-mabahit al-aama) without any arrest warrant being presented,and without any reason being given to justify this measure. Alkarama is particularly concerned bythe arrests of persons having exercised their right of expression in a peaceful manner, and of humanrights activists, some of whom are members of the organization.

Critics exercising their right of expression through the internet may be subject to pressuresextending to arrest and arbitrary detention.

Incommunicado detention, sometimes for long periods beyond the limits set by law, is common,particularly during the pre-trial phase. The judicial authorities exercise little control over pre-trialdetention. Places of detention are often intelligence services centres that are beyond the control ofthe judicial authority.

Dr. Saud Mukhtar Al-Hashimi was arrested on 5 February 2007 when he met with 8 other well-knownpersonalities of Saudi civil society to discuss the constitution of a committee for the defence of civil andpolitical freedoms, as well as the need for constitutional reforms in the country. Dr Al-Hashimi has oftenintervened in the Arab media to give his opinion on various issues concerning the political situation in theMiddle East and his conception of the reforms. A statement by the spokesman of the Ministry of Interior,General Mansur al-Turki, justified the arrests, accusing these men of "supporting and financing terrorism" and "conducting illegal activities relating to illegal collection of funds and diversion of funds for suspicious parties". Held incommunicado for long periods (156 days for Dr. Al-Hashimi), none of them has made an appearancebefore a magistrate to be notified of an indictment or of the legal grounds of their arrest. They have not beenable to consult a lawyer or to challenge the legality of their detention by introducing a review by a court. Theyhave not been tried so far. The Working Group on Arbitrary Detention found, in its Opinion 27/2007, that thedetention of Dr. Saud Al Hashimi and eight other persons constituted a serious violation of the UniversalDeclaration of Human Rights.

The fact of denying detainees access to legal counsel and external medical care, as well as visitsfrom their families is one of Alkarama's many concerns. Lawyers appointed by the detainees'relatives only rarely obtain permission to assist them. Consequently, the detainee has no legalpossibility of challenging the validity of his detention. But most importantly, many prisoners are notfreed after serving their sentence and are kept in prison without a fixed date of release.

Mr Mahmoud Hozbor, a Syrian citizen working in Saudi Arabia, was arrested on 3 July 2003 and detainedin a secret location, without any legal procedure. For more than six months, his family was unable to obtainany information as to his fate. It was not until January 2004 that they obtained permission to see him a singletime, at the Al Hayr prison. They learned that he had been subjected to severe torture and had been heldincommunicado and in total isolation for several months. Sentenced to 18 months in prison, he was transferredto the intelligence services detention centre of Al-Jouf's and no longer received any visits. At the end of theprison sentence, Mr Hozbor was not released and was kept in secret detention. He finally gave a sign of life bytelephone on 20 June 2008 but remains imprisoned without any legal basis.

3. Torture
Article 2 of the Code of Criminal Procedure specifies that an arrested person may not besubjected to torture and ill-treatment. The Saudi government stated, in its initial 2001 report, that"domestic law does not provide for any exceptional circumstances, including orders from asuperior, which may be invoked to justify torture." Saudi Arabia also ensures that confessionsextracted under torture are not admissible in a court action and that a suspect may withdraw hisconfession at any time during the proceedings. However, if an explicit prohibition of torture wasestablished by Royal Decree No. M/39 of 3 November 2001 Code of Criminal Procedure, no legal provision provides for criminal penalties for those who practice it, the Committee has alreadypointed out.

The Committee also stressed "The requirement of article 100 of the statute of the Directorate of Public Security for an investigating officer to endeavour "by judicious means" to ascertain thereasons for an individual's silence. While the article in question formally proscribes resort totorture or coercion, such a requirement unjustifiably heightens the risk of conduct violating the Convention."

In reality, the people arrested by the intelligence services are held incommunicado in the intelligence services' premises, sometimes for long periods, and are often victim to torture or ill-treatment.

Mr Abdulrahim Al-Murbati, a Bahraini businessman residing in Saudi Arabia, has been detained withoutlegal procedure since 22 August 2003, and his family has been without news of him since 6 June 2008. Afterhis arrest by the General Intelligence services in Medina, he was held incommunicado for more than fourmonths. It was during their first visit in December 2003 that his family was told that he has been brutallytortured since his arrest: he was tortured a great number of times, and at each interrogation, he was whipped onthe back and the soles of his feet with electric cables. He was imprisoned in solitary confinement, in a freezingcell lit day and night with a very bright light, and was never provided with medical care. He has never beentried.

The aim of torture is often to obtain confessions that are then used in judicial proceedings.Suspects are transferred to a local police station and imprisoned in a cell with a surface of 1m x1.5m in complete isolation where they are beaten, threatened, insulted and deprived of care andsleep.
It is common for detainees who demand counselling, a doctor’s visit, or their families, or whowant to challenge their detention in legal terms to be subject to sanctions in the form of torture.Those who have suffered ill-treatment do not systematically have access to medical care. It is onlywhen their state of health is alarming that the detainees are transferred to a hospital.

Gharmallah Khaled Ouda Al Zahrani, who was born in 1972, was arrested by the general intelligenceservices on 20 July 2004. His family has never been allowed to visit him in prison, nor to provide him with alawyer, nor obtain news of him directly or through the administration. They are particularly worried becauseKhaled Al Zahrani has very fragile health, suffering from a "diffuse interstitial pulmonary fibrosis” since a firstdetention without trial lasting six years from 11 March 1998 to 26 October 2003. He was urgently evacuated tothe King Faisal hospital from the beginning of his last arrest. The medical report, prepared on 28 July 2004 bythe department of internal medicine in which he was treated after his emergency evacuation, prescribes seriousmedical treatment and specialist care. In June 2007, he was still imprisoned in the basement of Al Hayr prisonin inhumane conditions. It appears he has had severe respiratory crises requiring interventions to resuscitatehim.

Article 38 of the Code of Criminal Procedure includes the right for detainees to submitcomplaints. It does not, however, explicitly mention that they may be about torture. But thesecomplaints are not taken into account and allegations of torture during trials are routinely ignored.

4. Justice: gaps and non-compliance with laws
Saudi Arabia is one of the few Muslim countries where the judicial system and jurisprudence isbased almost exclusively on Islamic law, which in Saudi Arabia is rite hanbalite. It still does nothave a Penal Code.

Justice is rendered by civilian and religious courts. The former deal with international affairs, such as financial and commercial disputes with a foreign company. Judges are appointed by theking on the proposal of the High Council on Legal Issues composed of 12 judges. Theindependence of the courts is enshrined in the Constitution (Article 46) but the king may interveneto modify or cancel judgements (art. 12 and 50).

It must also be acknowledged that legal texts, on the one hand, do not adequately ensure the principles of law, and on the other, that they are not respected. Criminal offences beinginsufficiently defined, prosecutors thus have full latitude to define them. The judges themselveshave a wide margin of interpretation of Sharia, their definitions of crimes and convictions arevariable, and their decisions are often arbitrary and dictated by the executive. The absence ofcodification promotes, in particular, arbitrary arrests and detentions and torture. The presumption ofinnocence is a little-honoured principle.

The law stipulates a period of custody which may be prolonged unduly. Being set at five days bythe investigator, he may refer the matter to the regional bureau of investigation which may extendthat period up to 40 days. If the investigation requires more time, it is up to the national bureau ofinvestigation, under the Ministry of Interior and therefore the attorney General, who is himselfappointed by the minister, to give the order to prolong the detention which can last up to six months(article 14). The investigator can in turn, for the purposes of the investigation, maintain the suspectin isolation for 60 days without contact with the outside world, except for his lawyer (art. 119).

It is not uncommon for trials to take place behind closed doors without witnesses other than thosefor the prosecution, which may be officers of the intelligence services responsible for thepreliminary investigation. The meetings are expeditious and a guilty verdict declared even in casesof doubt. Finally, acts are condemned without being recognized as criminal offences.

Dr Said bin Zair, 56 years old, and professor of information sciences at the University of Ryadh, wasarrested on 6 June 2007 in Riyadh. A personality known in the country for the public position he adopts aboutthe need for institutional reforms, as well as his support of the reformers’ movement, he has been jailed severaltimes: once for over 8 years, from 5 March 1995 to 24 March 2003, without trial and without ever having beenlegally prosecuted. He was arrested a second time on 20 April 2004 after giving an interview to Al Jazeera. Inthe wake of his arrest, he was held incommunicado for several months. He was sentenced to 5 years' criminalimprisonment on 19 September 2004, following an unfair trial during which none of his fundamental rightswere respected. He never had access to the charges filed against him, nor was he able to benefit from alawyer’s assistance on the day of his trial. He was released on 8 August 2005 but was arrested again on 6 June2007. He has been held incommunicado since then10. His son, Saad bin Zair, a lawyer and a human rightsactivist aged 29 was also arrested by the intelligence services on 10 April 2007 and has been heldincommunicado since then.

Some detainees report mock trial they did not even attend. In fact, they are summoned by amagistrate who notifies them of their conviction. It is at that time that they become aware of thecharges being brought against them. They therefore have no means to defend themselves since thejudicial process is over.

Mahmoud Hozbor, cited above, was sentenced to 18 months in prison on charges of non denunciation ofpersons wanted by the intelligence services. He was hauled out from his cell a few days after his arrest in themiddle of the night, taken blindfolded to an unknown location and put into an office containing several people.The person who appeared to be a magistrate, and to whom he complained at the outset of the treatment he hadsuffered, ordered him to shut up, saying: "Shut up, you deserve to be hanged!" This person then read whatproved to be an indictment, and told him he was sentenced to eighteen months in prison.

Many offences are punishable by death, while minimum conditions for a fair trial are not met.This penalty is in effect handed down at trials which do not meet the most basic internationalstandards: the accused cannot hire an attorney, the hearing takes place behind closed doors; theconviction is based on confessions extracted under torture or coercion; and neither the accused northe family is informed of the procedure.

Khaled Mohamed Issa Al-Qadihi was arrested with two other people on 25 July 2004 and accused of drugtrafficking following the discovery of five kilograms of cannabis on the bus from Syria via Jordan. He wassentenced to death on 26 April 2006 after an unfair trial and in the absence of minimum guarantees. Khaled Al-Qadihi was not able to hire an attorney, he has not acknowledged the facts, and mentioned that confessionsrecorded in the minutes of interrogation had been extracted under duress. The court refused to investigateallegations of torture, and was content to simply mention the accused’s statements in the grounds ofjudgement, merely noting that when he was requested to provide evidence of coercion he did not reply. Anappeal by the accused helped overturn the judgement on 2 December 2006, as the appellate judges noted that"the death sentence pronounced against the two accused was subject to revision because of the low quantityseized and the blank criminal record of the accused." The case was retried by the original court on 3 May 2007,composed of the same judges who rejected the decision of the appellate court to confirm their originaljudgement of the death penalty. They expressly motivated their second decision by "instructions from theexecutive power."

5. Recommendations

• The state should combat the practice of prolonged detention without trial andincommunicado detention by establishing a system of control over all places of detentionin the country, and particularly by placing them under the control and authority of thejudiciary institution.

• Guarantee the right of any person detained to exercise judicial review to challenge thevalidity of their detention before an independent judge, and to ensure in practice theright of any accused to hire an attorney at all stages of the investigation and trial.

• Ensure a legal process which offers all possible safeguards to ensure a fair trial,particularly those accused of a crime punishable by death, and in particular an adequatejudicial assistance at all stages of the proceedings, the right to appeal to a higher court;and to be tried again by a court with a different composition.

• Ensure that the composition of the judiciary is fully consistent with the basic principlesof the independence of the judiciary, devoting particular attention to the principle oftenures of judges.

• Adopt adequate measures to protect defenders of human rights and allow them to formthemselves into independent non-governmental organizations, join them, orcommunicate with them in accordance with Resolution No. 53/144 of 9 December 1998of the United Nations General Assembly.

• On the normative level: the state should consider ratifying the International Covenantrelating to civil rights, and making the declaration under Article 22 of the Conventionagainst Torture.

• The state should incorporate the crime of torture as defined by Article 1 of theConvention into domestic law and establish appropriate penalties to repress it.