Flawed Trials

The government was initially reluctant to consider trials of suspected militants—as recently as December 2006 Prince Muhammad bin Nayef, the assistant minister of interior, told Human Rights Watch that he considered trials for terrorism suspects ill-suited to Saudi Arabia’s tribal society,[44]—and for several years the government promised trials but made contradictory statements on whether a special court would be established, or whether ordinary Shari’a courts would handle the trials. Since 2007, Saudi human rights activists increasingly demanded trial or release for indefinitely detained mabahith detainees.

The government finally moved decisively toward trying suspected militants when in October 2008 officials announced the referral to Riyadh’s General Court, a Shari’a court, of 70 persons accused of involvement in terrorism. Shortly thereafter, they revised that figure to 991 suspected militants.[45] Other Shari’a courts designated to try terrorism cases were to be located in Dammam and Jeddah, with a specially selected panel of judges.

Authorities have yet to fully clarify the nature and jurisdiction of the tribunals designated to try suspected militants. The information reaching the press from official sources has been partial and sometimes contradictory. However, at least one version of how the courts are organized suggests that they may violate international standards for a fair trial, which mandate that courts must be established “by law” and cannot be hastily convened tribunals: The Saudi Watan newspaper on May 23, 2009, reported that the Supreme Judicial Council (the highest judicial authority in charge of organizing the court system following a change in the law in late 2007) created within Riyadh’s General Court an independent court to be called the “Special Criminal Court].” In October 21, 2008, Alarabiya.net news website reported Minister of Interior Prince Nayef as saying that those involved in terrorist attacks had been referred to the “Shari’a judiciary.”[46] However, Riyadh newspaper on October 31, 2008 quoted a “high judicial source” as claiming that “the trial of the accused is taking place in the General Court of Riyadh,” and denying that trials there were in “different courts,” casting doubt that a Special Criminal Court had been established at that time.[47] However, Riyadh on October 20, had reported that the Supreme Council of the Judiciary had selected 10 judges to form the panel of judges accepting terrorism cases, some of whom worked at the General Court, while three others came from Riyadh’s Partial Court (a lower court slated to become a court specialized in criminal, as opposed to civil, matters), and the remainder from other places.

Secret Trials

Human Rights Watch in October 2008 requested to monitor the trials, but received no answer. Foreign Minister Prince Saud al-Faisal said in response to media questions about Human Rights Watch’s attendance at the trials that “there is a local human rights organization that will 100 percent attend” them, Watan reported on October 22. However, to date, requests to attend trials by the only two legal Saudi human rights organizations—the private National Society for Human Rights, and the Human Rights Commission, a government body—have not been approved, members told Human Rights Watch. However, Maktoob Business website on June 29, 2009 reported comments by the chairman of the governmental Human Rights Commission, Dr. Bandar al-‘Iban, to Agence France Press that the commission had monitored the terrorism trials and that defendants “can choose a lawyer ... or the Ministry of Justice will provide one.”[48] Al-‘Iban did not respond to an enquiry Human Rights Watch sent him on July 10 seeking details of the commission’s monitoring of court sessions, defense lawyers, and an assessment of the fairness of proceedings.[49]

On October 28, 2008, then-Minister of Justice Dr. Abdullah Al al-Shaikh told the Saudi Okaz newspaper that the proceedings would be public unless the judges closed them. Article 151 of Saudi Arabia’s Law of Criminal Procedure makes clear that trials are open to the public unless the judge decides to close the proceedings. The law does not specify the criteria he must use to justify such a move, which cannot be appealed. Nevertheless, the trials to date have been entirely held in secret to Human Rights Watch’s knowledge. A human rights activist told Human Rights Watch that authorities have not publicly disclosed the names of the defendants, the precise charges against them, or the dates of their trials.[50]

When courts close trials to the public it becomes difficult to assess the fairness of the proceedings, and thus difficult for the court to dispense justice that is seen to be fair. International law requires that trials be open and allows them to be held in camera only in narrow circumstances, such as to prevent the identity of minors or of victims of sexual abuse from becoming public or, in a limited number of national security cases, to prevent publication of information such as intelligence procedures vital to protect national security.[51]

Concern over the closed nature of these trials spread slowly in Saudi Arabia and internationally. The US State Department’s Annual Report on Terrorism 2008, issued on April 30, 2009, acknowledged that, “The court sessions will be restricted to the judges, lawyers, and the accused, which has led to criticism over the lack of transparency.”[52] On May 13, a group of Saudi human rights activists issued a petition to the king, entitled, “Establishing Secret Tribunals is an Attempt to Obscure Oppression and Thwart Any Possible Political Reform in Saudi Arabia,” condemning the closed nature of these trials.[53]

Only a handful of articles concerning the trials of suspected militants appeared in the Saudi press following a flurry of articles between October 20 and 31, 2008 that contained highly inconsistent information regarding the number of persons referred to court, as well as what procedures the courts were following. The Saudi government in late 2008 claimed it was authenticating confessions of the accused for use as evidence in trials, but no information was available concerning the voluntary nature of these confessions.[54] Saudi governmental television in May 2007 broadcast confessions of a handful of detainees.[55] Since the trials began the Saudi media do not appear keen on monitoring them closely and do not dispute their being closed.[56]

International standards provide a host of fair trial guarantees in addition to the presumption of innocence at a public hearing by a competent, independent and impartial tribunal established by law. Those guarantees include the right of a defendant to be promptly informed of any charges against him, to be charged with a cognizable offence, to be tried without undue delay, to engage a lawyer of his choosing or have legal assistance assigned to him without charge, to have adequate time and facilities to prepare a defense, to examine witnesses against him and to present witnesses in his defense, not to incriminate himself, and to appeal any judgment to a higher court.[57] Saudi officials have already violated the right of detainees to be promptly informed of any charges and to be tried without undue delay. They have also denied defendants’ rights to public hearings and to legal assistance, according to information on some cases available to Human Rights Watch.

Family members of detainees in mabahith prisons were able to give brief accounts of the trials under way to Human Rights Watch. Their accounts underscore concerns that fair trial standards are not being met. In April 2009 the family of a detainee tried in Dammam said that he had no lawyer and that at least two trial sessions had already taken place without the detainee having received notice or time to prepare.[58] The family of another inmate detained in Dhahban said that detainees on trial there had no lawyer, learned of their trial dates only a few days in advance, and that defendants had no opportunity to challenge the evidence against them during the hearing. The family said their detained relative told them that trials were summary, with judgments rendered after one or two court sessions. The sentences ranged from 15 years’  to 30 or even 40 years’ imprisonment, and no appeal was possible, he told his family.[59]

Madina newspaper on February 9 quoted a judicial source as saying that “trials were fair, guaranteeing [the defendant] his rights and facilitating his right to defend himself” on his own, but not, apparently, of seeking the assistance of professional legal counsel.[60] The petition mentioned above also criticized the absence of lawyers for the defense, and one of the petitioners told Human Rights Watch that some lawyers have faced government pressure to refrain from trying to represent the accused. In an interview with Watan published on May 23, the deputy head of the National Lawyers’ Association, Sultan bin Zahim, declared that “it is a national duty and a professional objective to excuse oneself from defending those accused of terrorism,” adding that the reason was the fact that the “investigation and trial methods are very precise in terrorism cases.”[61] Bin Zahim further considered the existence of a specialized court and judges as the sole guarantee necessary for a fair trial. One lawyer approached by families of the detainees told Human Rights Watch that he declined to represent the detainees, not only because the authorities were unlikely to allow him to attend the hearings and consult with his client, but because these trials were unlikely to follow fair trial standards. In this lawyer’s view, the trials were not about applying the law, but about a political dispute between the government and a group of violent extremists.[62] The two detainees mentioned above told their families that none of the defendants tried so far had any legal assistance.

Saudi Arabia has no written penal code specifying crimes of terrorism or defining incitement to violence as a crime. Okaz reported on July 8, 2008, that those accused would face charges of “spreading corruption on earth.”[63] On July 8, 2009, Alarabiya.net reported that charges on which the accused were convicted included “belonging to al Qaeda organization; communicating, coordinating, and working with foreign agencies plotting against national security by creating chaos and breaching security, in addition to support and financing terrorism; and participation in fighting in neighboring countries.”[64] None of these crimes exist in clearly defined codified form, making the availability of specialized Shari’a legal assistance and the ability to question evidence even more important. Murder charges fall generally under Shari’a provisions for qisas, the law of retribution; and hiraba, organized crime and spreading corruption on earth, is often regarded as part of hudud, or crimes against God, for which certain criteria of proof exist under Shari’a. However, the largest category of “crimes,” the ta’zir or discretionary rulings, remains entirely undefined, and this would include the charges cited in the Alarabiya.net article. Judges decide what is a crime and set attendant penalties at their own discretion, making a legal defense extremely difficult. Of those detainees referred to court, it is reasonable to assume that the majority are accused of actions involving planning, preparing, facilitating, and financing acts of violence.

Furthermore, the announced trial of some Islamic scholars on charges of incitement to terrorism would require a precise definition of that crime. International law protects freedom of expression, and particular care should be taken when a state criminalizes the use of speech. Although it is permitted to criminalize direct incitement to violence, such crimes need to be precisely defined and limited to cases of direct incitement rather than peaceful discussion of opinions.[65] As of April 2009, a relative of one of the detained scholars in question said he believed his trial had not yet begun.[66]