May 4, 2009

Your Excellency,

Allow me to offer my congratulations on your recent appointment.

Human Rights Watch is an independent international human rights organization monitoring and reporting on the situation of human rights in over 80 countries in the world.

We write to you publicly to urge you to release Muhammad Burhan Sa'id Musa, commonly known as Muhammad Burhan, an Eritrean national currently imprisoned in Dhahban prison. He was unlawfully arrested, wrongly convicted, and remains arbitrarily detained. We also urge you to award him fair compensation for the violation of his rights.

According to the information we have received, on August 8, 2005 (3/7/1426) domestic intelligence agents (al-mabahith al-‘amma) arrested Burhan on the grounds, later apparently dismissed, of sending emails to Sa'd al-Faqih and Muhammad al-Mas'ari, Saudi opposition figures in the United Kingdom. On October 8, 2006 (15/9/1427), an ordinary criminal court sentenced Burhan on a new, though unproved charges of "charlatanry" (obtaining money through trickery) to 20 months in prison and 300 lashes. Despite having completed his prison sentence, Burhan has now been in detention continuously for 46 months.

King Abdullah has stated his desire to reform the justice system and appointed you to implement these reforms. Regrettably, the violations of Burhan's rights have been numerous and flagrant:

1. Substantive Violations

  • Freedom of Expression

Burhan has told relatives that his interrogation focused solely on the email he allegedly sent. The email in question says in its relevant part "I am prepared to cooperate with [Sa'd al-Faqih and Muhammad al-Mas'ari] on behalf of the reform movement inside [Saudi Arabia] in a manner that you consider appropriate and that benefits all." It does not advocate violence or illegal acts. Nevertheless, in a reply to an inquiry by the Eritrean Consulate about Burhan in 2007, the Saudi government cited unspecified "security" reasons as the grounds for his detention.

Peaceful expression of opinions sent through emails abroad or domestically, whatever their political content, is protected under international human rights law. The Arab Charter of Human Rights, which Saudi Arabia acceded to in April 2009, though the Cabinet has not yet ratified, guarantees the "right to media and free expression, to obtain news and thoughts, to receive and transmit them through any means, and without consideration of geographical boundaries" (art.32.a.).

In order to impose permissible restrictions on this right for considerations of "national security" (art.32.b.) the state would have to prove that the speech "intended to incite imminent violence" and that any restrictions are necessary to "protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force" (The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, principles 6 and 2).

The kingdom's Printing and Publishing Law of 2000 does not apply to private email correspondence (see art. 2), and the Law Combating Information Crimes of 2007, which covers emails, does not apply since it was passed after the events in question took place (see art.38 of the Basic Law).

Nevertheless, Saudi Arabia regularly arrests persons merely on suspicion of having maintained contacts with al-Faqih in London, apparently without regard to the content of their communications and in the absence of apparent threats to the country's existence or territorial integrity (See: Human Rights Watch, Saudi Arabia - Precarious Justice, vol. 20, no. 3(E), March 2008, pp 54, 60, 119, 120, and 123).

  • Absence of Personal Culpability

Within days of Burhan's arrest, evidence was produced showing that he was unlikely to have authored emails to Saudi opposition figures. He claimed that he does not know how to operate a computer. When the family learned of the alleged grounds for Burhan's detention, his son-in-law, Dr. Muhammad al-Turki, gave a voluntary statement to intelligence officers that he was the author of the email in question and had used his father-in-law's telephone line to connect to the Internet. In fact, the email as seen by Human Rights Watch is signed by Dr. Muhammad al-Turki. Intelligence officers reportedly acknowledged the veracity of that statement. Al-Turki had been imprisoned in the 1990s for connections to al-Faqih, and remains under a ban on foreign travel as a result.

The kingdom's basic law holds that "no one shall be punished for another's crime" (art.38), yet the domestic intelligence (mabahith) continued to detain Burhan for acts attributable to another person.

  • Conviction Despite Lack of Proof Of Guilt

After discovering that Burhan was not in fact the author of the email, authorities did not release him. Some months later they transferred his case to the public prosecutor who filed charges for charlatanry in an ordinary criminal court in Jeddah. Around three weeks after Burhan's arrest, intelligence officers searched his house and confiscated a number of items, including a book by medieval scholar Imam Suyuti entitled "Medicine and Mercy," and a leather-bound personal phone booklet belonging to Burhan with writings in the Tigrinya alphabet used in Eritrea.

The prosecutor considered this book and the booklet a "talisman," according to the verdict, which goes on to list without further explanation the charge of charlatanry by "wrongfully taking people's money." No evidence besides the talisman is listed for this charge. Saudi Arabia has no penal code that precisely defines acts constituting a criminal offense and does not apply a system of judicial precedence. Any criminal charge is therefore subject to arbitrary interpretation.

In this case, however, the judge is clear in his written verdict that "it has not been proven to me that the accused practiced sorcery and charlatanry and that he possessed tools to wrongfully take people's money." Nevertheless, the judge proceeded to sentence Burhan, citing "the presence of charges," although he had just stated this had not been proved, to 20 months in prison and 300 lashes.

The Basic Law of Saudi Arabia does not allow convictions "without reference to the Sharia or the provisions of the Law" (art.38), yet the judge provides no basis in law for this sentencing. The Arab Charter of Human Rights upholds the principle that every accused person is innocent until his guilt has been proven (art.16). The Saudi Law of Criminal Procedure of 2001 spells out that no punishment may be inflicted until after a person's incrimination has been established in a final verdict (art.3). [ثبوت إدانته] What is clear from the verdict no. 476/5/Jim, dated October 7, 2007 (17/9/1427) issued by the Partial Court, Jeddah and signed by Judge ‘Umar Salim ‘Umar Baqabas, but prepared by Judge Muhammad Amin Abd al-Mu'ti Murdad, substituting for Baqabas during his leave, is that the court wrongfully convicted Burhan on a charge it had itself found to be unsubstantiated. Judges Sa'd Al Kulaib, Sa'd al-Tamimi, and Abdullah al-Shammari of Makka's Court of Cassation affirmed the verdict on November 15, 2007.

2. Procedural concerns

  • Detention beyond expiry of sentence

Burhan's sentence was for 20 months from the date of arrest. Consequently, he should have been released on March 22, 2007 (3/3/1428), counting according to the Islamic calendar. The United Nations Working Group on Arbitrary Detention has defined detention beyond the expiry of a sentence to fall within Category I of arbitrary detention, that is, detention for which it is impossible to invoke a legal basis. The Saudi Law of Criminal Procedure also mandates the immediate release of a person following the completion of the sentence (art. 216). This article also makes clear that the outstanding lashes cannot account for continued detention, since a person is to be released if "carrying out his sentence does not require prison."

  • Other concerns

The judge held five trial sessions, but proceeded despite Burhan's absence at two of them, for reasons not within Burhan's control. Either the prison authorities were not notified to bring Burhan to trial, or did not bring him, despite a notification. His trial should not have proceeded without him. The written verdict indicates that Burhan had an opportunity at trial to deny the charges against him but does not make clear whether the judge allowed him to speak in his own defense. The judge sentenced Burhan even though the prosecutor failed to produce at trial evidence or witnesses he claimed he had, according to the verdict. The Law of Criminal Procedure mandates judges to base their judgment "on the evidence produced during the trial" alone (art. 180).

Furthermore, authorities did not furnish Burhan with a copy of his verdict to consider an appeal, in violation of the Law of Criminal Procedure (art. 183). His relatives, however, obtained a copy through other sources at court.

Last, Ibrahim Muhanna of the Ministry of Interior in June 2007 told a relative of Burhan that his continued detention was due to a "third, security case." Article 116 of the Law of Criminal Procedure gives the arrested person the right to "be promptly notified of the reasons for his arrest or detention" and the investigator (in Saudi Arabia, this is also the prosecutor) must inform the detainee of the charges "when the accused appears for the first time for an investigation," (art. 101) which has to be within 48 hours (art. 34) of his arrest.

The multiple procedural errors in this trial are of such gravity that they have a direct bearing on ability to prove the guilt of the accused, thus invalidating the judgment, as provided by the Law of Criminal Procedure's provisions defining procedural errors that are "incorrigible" (arts 190 and 192).

For these reasons, we urge you to uphold justice and immediately order the release of Muhammad Burhan Sa'id Musa and to award him fair compensation for the violations of his rights. Burhan is approaching 70 years of age and has lived in Saudi Arabia for 30 years without prior conflict with the law.

Sincerely,

Joe Stork
Deputy Director
Middle East and North Africa Division