March 25, 2008

Summary

New laws [will] ensure justice and protect public rights.
-Crown Prince Sultan bin Abd al-'Aziz, October 18, 2007

Saudi government officials have made a number of declarations in recent years, asserting that the Saudi criminal justice system adheres to high standards, and have recently implemented a number of legal reforms. The practice of Saudi justice, however, does not measure up to these declarations, and the reforms have not appreciably strengthened the safeguards against arbitrary detention or ill-treatment, or enhanced the ability of defendants to obtain fair trials.

Human Rights Watch conducted research missions to Saudi Arabia in November and December 2006, and again in May 2007. We found pervasive injustices in the Saudi criminal justice system and systematic and multiple violations of defendants' rights. Individuals in Saudi Arabia may find themselves detained and arrested for behavior that is not inherently criminal, or for apparently (and unwittingly) offending vague legal prohibitions. They may then find themselves in solitary confinement and subject to forms of ill-treatment. The authorities often do not inform individuals of the crime of which they are accused, or the evidence supporting the accusation. An accused person typically does not have access to a lawyer, faces abuse when refusing to incriminate him or herself, and waits excessive periods of time before trial, where he or she is often unable to examine witnesses or evidence and present a legal defense, not least because of a presumption of guilt and shifting charges.

The violations of defendants' rights are so fundamental and systemic that it is hard to reconcile Saudi Arabia's criminal justice system, such as it is, with a system based on the basic principles of the rule of law and international human rights standards. The violations derive from deficiencies both in Saudi Arabia's law and practices. Saudi Arabia has not promulgated a penal (criminal) code. Accordingly, citizens, residents, and visitors have no means of knowing with any precision what acts constitute a criminal offense. Previous court rulings do not bind Saudi judges, and there is little evidence to suggest that judges seek to apply consistency in sentencing for similar crimes. Saudi criminal justice imposes the death penalty after patently unfair trials in violation of international law, and imposes corporal punishment in the form of public flogging, which is inherently cruel and degrading. Saudi law and practice are also inherently discriminatory. One Saudi interpretation of Sharia law provides that a Muslim woman's testimony is not generally accepted in criminal cases and non-Muslim men may testify only in cases of "necessity." Women cannot represent themselves in court under the Saudi practice of male guardianship over "minors," a term that includes women of all ages.

In 2002 Saudi Arabia promulgated the country's first criminal procedure code. While this was a welcome step, the Law of Criminal Procedure (LCP) does not incorporate all international standards pertaining to the basic rights of defendants. For example, the LCP does not permit a detainee to challenge the lawfulness of his or her detention before a court, it fails to guarantee access to legal counsel in a timely manner, and contains no provision for free legal assistance to the indigent. The LCP grants the prosecutor the right to issue arrest warrants and prolong pretrial detention up to six months without any judicial review. While the LCP prohibits torture and undignified treatment, it does not make statements obtained under duress inadmissible in court. It does not set out the principle of presumption of innocence, or protect a defendant's right not to incriminate him or herself. Furthermore, it does not sanction officials who coerce defendants, and empowers prosecutors to detain suspects without having to meet a defined standard of evidence of a suspect's probable guilt. Judges routinely ignore, and are even ignorant of, the provisions of the Law of Criminal Procedure.

Many of the most systematic abuses occur at the hands of the Ministry of Interior's domestic intelligence service (mabahith), which runs its own detention facilities. These range from holding cells of local intelligence offices to sprawling prison complexes such as al-Ha'ir mabahith prison near Riyadh, which is close to al-Ha'ir Correctional Facility for ordinary criminal defendants. In at least one region, Najran, court documents show that the intelligence service used its own prosecutors.

Outside agencies do not scrutinize the policies and practices of the mabahith. None of the seven former detainees and 25 family members of current mabahith detainees Human Rights Watch spoke with said he had ever seen an official from the Bureau of Investigation and Public Prosecutions visit mabahith prisons, although the law tasks the bureau with inspecting all prisons and freeing inmates wrongfully detained. Saudi Arabia's four-year-old government-approved National Society for Human Rights (NSHR) did not carry out inspections of mabahith prisons, but the two-year-old governmental Human Rights Commission toured some facilities in 2007. The NSHR, in its first report (May 2007), said it hoped to visit in the near future.[2] The Saudi government abruptly cancelled an agreed visit by Human Rights Watch to mabahith prisons in May 2007.[3]

The mabahith has arrested human rights activists, religious activists, academics, and advocates of political reform, and held some for over 10 years without charge. It currently holds around 1,500-2,000 dissidents and security detainees in its detention facilities, following the release of 1,500 detainees in November 2007.[4] Anecdotal evidence suggests that the number had increased in recent years before the recent large-scale release, as the mabahith detained scores of Saudis returning from Afghanistan after 2001 and those suspected of heading to Iraq since 2003, as well as others suspected of involvement in a domestic bombing campaign that began in March 2003. When Sa'd al-Faqih, a Saudi dissident living in London, called for demonstrations against the government in 2004, and thousands of Saudis took to the streets of Riyadh and Jeddah in response, the mabahith arrested hundreds of the protesters, some of whom still remain in detention.

Detainees held by the mabahith have no effective access to legal counsel or the courts, and the mabahith carries out arrests without judicial oversight and without a legal basis. In the rare cases in which mabahith detainees have actually received a trial, it is in secret, as is the passing of the sentence, and families and former prisoners reported that the mabahith keeps prisoners in detention well beyond the expiry of their sentence. For most detainees languishing in mabahith jails for years, the day they are to be tried in a court of law has not yet arrived.

Instead of charging many security detainees with crimes and bringing them to trial, Saudi Arabia claims that it tries to reeducate them. Over 700 mabahith detainees have been released following their "successful" reeducation since the start of the program in 2003, officials told Human Rights Watch in December 2006. The Ministry of Interior's Consultation Committee, composed of religious experts and psychologists, invites detainees suspected of harboring "deviant" thoughts-a term Saudi officials use for violent and non-violent dissidents alike-to participate in a program of reeducation. It is an invitation that detainees can hardly refuse, since successful completion of the program is a necessary, though not sufficient, condition for release. Substituting such a program of involuntary "reeducation" for an impartial adjudication of criminal charges in a court of law denies defendants the chance to prove their innocence and clear their names. A senior Saudi official told Human Rights Watch that the reeducation approach largely replaces trials.[5]

Human rights violations also arise at the time of arrest and detention of detainees who are not national security suspects. While Saudi law provides some formal safeguards against arbitrary arrest, police officers frequently ignore them. In violation of Saudi law, officers carry out arrests without warrants, fail to inform suspects of the reasons for their arrest or of their rights to legal counsel, do not grant detainees the right to communicate with the outside world, and do not formally charge suspects with a crime. Human Rights Watch has only come across a handful of cases where a criminal defendant was able to have access to a lawyer before a case was referred to trial.

The Commission for the Promotion of Virtue and Prevention of Vice (CPVPV) is an authorized law enforcement agency in Saudi Arabia. In 2005 the CPVPV's 5,000 religious police officers, together with 5,000 volunteers, carried out 400,000 arrests. Since 2006 these agents, who do not wear uniform, must wear identifying badges and may only make arrests when accompanied by a regular policeman. A 1980 law empowers these religious police, who answer only to the king, to arrest, detain and interrogate persons for undefined criminal offenses. On July 1, 2007, Interior Minister Prince Nayef reaffirmed a 1981 royal decree prohibiting the religious police from detaining and interrogating suspects at their centers. A year earlier, the Saudi government declared that religious police must not detain or interrogate suspects or "violate the sanctity of private homes." However, the CPVPV does not observe the Law of Criminal Procedure when arresting, detaining, and interrogating suspects. The president of the CPVPV said that his agents can enter private homes if they learn of a serious crime in progress. In 2007, reportedly for the first time, CPVPV members faced criminal charges of murder and abuse of power in three separate incidents, but the courts acquitted the officials.

Such arrest practices by the police and the CPVPV result in defendants waiting anxiously in prison without knowing what it is they are alleged to have done; what, if any, evidence the prosecutor has against them; when the prosecutor will interrogate them; or if he will take them to court. Several defendants told Human Rights Watch that they learned of their first court date only the night before or on the same morning. Detainees spent between a few days and several months in a police station before being moved to a general prison; in prisons there was no separation between convicted prisoners and detainees on remand or who were still awaiting a court hearing.

More than a dozen defendants arrested by the police said that at police stations, and in particular at the branches of the Ministry of Interior's Criminal Investigation Department, police officers, and sometimes prosecutors, beat them and threatened them in order to extract confessions. Once they confessed, officers usually drove them to court for a procedure called verification of statements in which defendants put a thumbprint on statements made during interrogation in order to authenticate them for use during trial.

Saudi criminal procedures, which permit judges to shift roles between adjudicator and prosecutor, indicate that in practice there is no presumption of innocence for defendants. Unless the crime is considered "major" under Saudi law, the trial judge dons the mantles of both judge and prosecutor. In all criminal cases, the judge can change the charges against the defendant at any time and, in the absence of a written penal code, it appears that judges in some cases set out to prove that the defendant has engaged in a certain act, which they then classify as a crime, rather than proving that the defendant has committed the elements of a specific crime as set out in law. In other cases, defendants recounted how a judge refused to proceed with a trial unless the defendant disavowed and withdrew a claim that his confession was extracted under torture, effectively holding the defendant hostage until he reaffirmed a confession obtained under duress.

With exceedingly short notice before court hearings, defendants have little time to prepare their defense, and lack access to their files, including the prosecutor's case against them and the specific charges under Saudi law. Detainees did not have access to Saudi statutory laws or current interpretations of Sharia. Unless they had had specialized Sharia training, they had no means of knowing the elements of the crime pertaining to the criminal behavior they were accused of, the procedures necessary to establish guilt under Sharia rules, and the penalty they could expect to receive if found guilty. Defendants also told Human Rights Watch about their inability to bring witnesses to testify on their behalf, even with a lawyer present, or to challenge the witnesses for the prosecution. No defendants interviewed by Human Rights Watch recalled ever seeing physical evidence produced in court, or having access to exhibits of evidence available to the judge and prosecutor. Although waiting times before trial and between hearings can be weeks, months, or even years, judges typically concluded entire trials in one or two court sessions lasting one or two hours. With few exceptions, defendants did not receive a copy of their verdict, making an appeal extremely difficult.

The defendants' inability to access, much less to challenge, allegedly incriminating evidence, a frequent presumption of guilt, and vague and shifting charges all combine to create insurmountable obstacles for defendants trying to prove their innocence. Saudi judges in several cases admitted that a defendant's guilt was not proved. Instead of finding the defendants not guilty of the charges they faced and releasing them, though, the judges convicted them but issued more lenient sentences than they otherwise would have.

Saudi Arabia has taken recent steps to assemble some building blocks of the rule of law, such as the Law of Criminal Procedure. In October 2007 the government amended two laws, the Law of the Judiciary and the Law of the Board of Grievances, which improve judicial independence. The laws also set up new specialized courts for personal status, commercial, labor, and traffic disputes. Furthermore, a new supreme court will be able to hear a variety of appeals. The king announced $1.8 billion in government funding to build and staff new courts and train old and new judges. However, progress toward this and other reforms has been slow and has had little effect on the rights of defendants in the criminal justice system. Saudi Arabia should tackle the fundamental shortcomings of its judicial system by reforming its laws and its criminal procedures, from arrest through imprisonment, to ensure that they comply with international human rights standards. At present, the shortcomings in Saudi Arabia's criminal justice system are so pervasive as to leave grave doubt that Saudi courts have established the guilt of sentenced prisoners in a fair trial and that law enforcement officers detain untried defendants on a sound legal basis.

Human Rights Watch recommends that Saudi Arabia initiate reforms in four areas of its criminal justice system to strengthen due process and fair trial rights in compliance with international human rights law and standards.

First, the Saudi cabinet should pass, amend, or rescind laws and decrees as necessary to bring Saudi Arabia into compliance with international human rights law, including by changing the Law of Criminal Procedure to allow detainees to challenge the lawfulness of their detention and by enacting a penal code that prohibits jailing persons solely for indebtedness. Second, the Ministry of Interior and the Bureau of Investigation and Public Prosecution should make changes in its practices when arresting and interrogating a person to ensure greater transparency and prevent ill-treatment of detainees. Third, the Ministry of Justice and the Supreme Judicial Council should strengthen the rights of defendants to ensure they can get a fair trial, including by providing defense lawyers free of charge to indigent defendants and allowing defendants to effectively challenge the evidence against them. Finally, the Saudi government should remove the prosecutorial offices from the control of the Ministry of Interior, and remove the power to arrest, detain, and release suspects from the prosecution.

[2] National Society for Human Rights, "First Report on the Situation of Human Rights in the Kingdom of Saudi Arabia," May 21, 2007, http://www.nshrsa.org/articles.php?ID=48 (accessed July 25, 2007).

[3] Human Rights Watch telephone and email communication with a diplomat in the Saudi Embassy, Washington, DC, approving the visit, April 30, 2007. The government cancelled the trip, due to start May 12, on May 10, Human Rights Watch telephone and email communication with a diplomat in the Saudi Embassy, Washington, DC, May 10 and 11, 2007.

[4] Amnesty International, "Saudi Arabia: Fear of torture or ill-treatment/ incommunicado detention," Urgent Action, MDE 23/028/2007, July 19, 2007, http://web.amnesty.org/library/Index/ENGMDE230282007?open&of=ENG-SAU (accessed August 7, 2007), and "Saudi frees 1,500 extremists who changed course: report," Agence France-Presse, November 25, 2007. Since 2007, Saudi Arabia has around 500 new terrorism suspects.

[5] Human Rights Watch interview with Assistant Minister of Interior for Security Affairs Prince Muhammad bin Nayef, Riyadh, December 4, 2006.