December 16, 2011

Dr. Bandar al-‘Iban

Chairman

Human Rights Commission

Riyadh – Kingdom of Saudi Arabia

 

Your Excellency,

 

Human Rights Watch urges you to intervene in the case of ‘Amir ‘Iyada, and five other co-defendants, sentenced to have their right hands and left feet cut off.  Such a sentence should not be carried out in any circumstances, since it constitutes torture, in violation of the kingdom’s international human rights obligations. Moreover, in this case, allegedly grave violations of the defendant’s right to a fair trial cast serious doubt on whether the man sentenced to undergo this punishment is guilty as charged.

We ask you to assign ‘Iyada and the others a competent lawyer, as the Commission has done in other cases, to request a retrial of ‘Iyada and his five co-defendants, and to publicly denounce the punishment imposed as unlawful torture. We also ask you to regularly and frequently visit ‘Iyada and the other defendants in Malaz prison, to ensure that they suffer no adverse consequences from the publicity given their case.

The charter of the Human Rights Commission, a government ministry, tasks it with “receiving complaints on matters of human rights, verifying them, and subsequently taking the necessary action required” (art. 5.7.) as well as “to ascertain that the respective government entities have complied fully with the rules and regulations related to human rights practice” (art. 5.1.), “to pursue government agencies to ascertain its compliance on international treaties [sic]” (art.5.6.), and gives it the right to visit places of detention (art. 5.6.).

Details of the Case

On March 29, 2011, Riyadh’s General Court sentenced ‘Iyada and five other defendants to have their right hand and left leg amputated for participating in the crime that Sharia legal scholars call hiraba, or armed (highway) robbery. The court found that on the morning of October 9, 2010, the defendants cornered three employees of the Tamimi supermarket on Riyadh’s King Fahd Road as they were transporting the week’s proceeds of SAR4 million (about US$1.07 million) in the boot of their car, that they threatened the employees with a gun, and that they took the money from them. No one was physically harmed.

Saudi Arabia has no penal code or other system that defines this offense in all its elements, making it inherently unpredictable. For example, Islamic scholars differ over whether hiraba applies only to offenses committed outside city limits and only to situations where those attacked are unable to call for help. The Qur’an lists four punishments for hiraba, namely to kill offenders, crucify them, amputate their hands and feet on alternate sides, or banish them. Scholars disagree over the meaning of banishment, which some take to mean imprisonment. They also differ on how and in which cases to apply these punishments, in particular on whether the judge is free to set the punishment, or whether armed robbery resulting in death or injury requires killing and crucifying the offender, whether armed robbery without personal harm requires amputation, and whether an intent to commit armed robbery without carrying it out requires banishment.

‘Iyada’s family in early December learned that the Cassation Court had confirmed the verdict. The Supreme Court, the final instance of judicial review, has yet to review the case. The king cannot under Saudi law grant a pardon in cases of hiraba, or armed robbery, considered a crime against God under Saudi interpretation of Sharia law. The king’s approval is nevertheless necessary to carry out the verdict.

Judicial Torture

It is well-established that judicial verdicts imposing corporal punishment, including amputations, constitute torture. Saudi Arabia acceded to the Convention Against Torture (CAT) in 1997 and the UN committee overseeing implementation of the CAT in 2002 commented on Saudi Arabia’s first and only report by criticizing “[t]he sentencing to, and imposition of, corporal punishments by judicial and administrative authorities, including, in particular, flogging and amputation of limbs, that are not in conformity with the Convention” (CAT/C/CR/28/5). In a communication to your government, the UN Special Rapporteur on Torture in November 2010 expressed “concern for the physical and psychological integrity” of a Saudi journalist sentenced to 50 lashes (report to the Human Rights Council, March 1, 2011, A/HRC/16/52/Add.1).

Addressing corporal punishment in general, the special rapporteur in his report to the UN General Assembly of August 30, 2005, observed that any form of corporal punishment is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (A/60/316). The third of fifteen general recommendations by the special rapporteur on torture issued in 2003 is that “Legislation providing for corporal punishment, including excessive chastisement ordered as a punishment for a crime or disciplinary punishment, should be abolished” (E/CN.4/2003/68, para. 26).

Torture is an international crime, and states parties to the CAT have an obligation to prosecute the individuals responsible for or complicit in this crime, should it take place and where Saudi authorities fail to do so. Human Rights Watch has collected information of four cases of court-ordered amputation of a hand carried out in Saudi Arabia over the past decade, the last one in August 2010.

Arbitrary Detention, Coerced Confession

Your Excellency, ‘Amir ‘Iyada alleges numerous rights violations during arrest, detention, and trial. When security officials in civilian clothes entered his house on October 2010, they did not present an arrest warrant or identify themselves. They arrested ‘Iyada, two brothers, one of whom was around 15 years old at the time, and a sister, then 13, as well as his maternal uncle. In detention at Riyadh’s Criminal Investigation Department, ‘Iyada alleges that officers threatened him, saying that they would not release his relatives unless he confessed, to which he eventually agreed.

‘Iyada also alleges severe physical ill-treatment amounting to torture. He said that during his 10 days in detention at the Criminal Investigation Department in Riyadh’s Batha neighborhood, four officers beat him repeatedly, at all hours of the day. ‘Iyada said they used their hands, electrical cables, and sticks, and beat him for hours on end all over his body, administering particularly heavy blows to his back near his kidneys. The officers’ names and ranks, as ‘Iyada gave them, are [publication of names withheld by Human Rights Watch]. ‘Iyada said the fourth interrogator was a Pakistani man who spoke broken Arabic. ‘Iyada said [name withheld] and [name withheld] were the most brutal.

At the end of the 10 days of torture, ‘Iyada says the officers forced him to sign a prepared confession, then they took him straight to court for a legal procedure called “authentication of statement” before which [name withheld]. warned him that should he contest his confession he would be returned for more torture. ‘Iyada says that when he appeared before a judge whose last name he gave as al-Muqhim, his face bore marks of torture.  Despite this, ‘Iyada says, Judge al-Muqhim did not ask him about those marks or allow him to speak, but only to answer “yes” or “no” with respect to the authenticity of his confession. Guards were present in the courtroom with him, ‘Iyada says.

After being returned to the criminal investigation department, ‘Iyada went on hunger strike for seven days to demand a retraction of his confession, but officials did not respond. One guard, [name withheld], allegedly told him that he “had no rights” in Saudi Arabia because he was a stateless person, like the other five accused. ‘Iyada’s family is originally from Mosul, Iraq, and arrived in Saudi Arabia some six years ago.

Officers then transferred ‘Iyada to Malaz prison, where guards locked him in a cell that he described as being one meter by one meter, for 33 days. A guard, [name withheld], reportedly told ‘Iyada that he had instructions from the Criminal Investigation Department to keep him in isolation. ‘Iyada developed an ailment in one of his legs, a possible thrombosis, from which he continues to suffer today, he says, but guards refused his request to see a doctor.

Officers then transferred ‘Iyada out of solitary confinement into a communal cell in Malaz prison.  However, he remained in incommunicado detention. ‘Iyada says he later learned that a lawyer hired by his family was four times refused permission to meet with him in order to obtain a power of attorney. Authorities also prevented all family visits to ‘Iyada.

Unfair Trial

On February 28, 2011 at 7 a.m., three months after being moved into the communal cell, ‘Iyada was informed by guards that he had a court appointment that day, ‘Iyada says. On his way there, he was briefly able to call his father, but Judge Abd al-‘Aziz Al al-Shaikh refused to allow either his family or the lawyer they hired for him to attend the trial session. The session lasted 30 minutes, and the judge did not give the six defendants the opportunity to speak in their own defense, ‘Iyada says.

One month later, on March 29, 2011, again without notice, ‘Iyada was taken for the second trial session, in which the judge pronounced the verdict, again without allowing the defendants to present their version of events in detail. ‘Iyada says that he asked for the assistance of a lawyer in both sessions, but that Judge Al al-Shaikh refused. ‘Iyada claims his participation in the crime was substantially different from that described in the verdict and that he was not even at the scene of the crime when it occurred. The names of the other defendants are: Barzan bin Rahil al-Shammari, Muhammad bin Ali al-Shammari, Muhammad bin Dhiyab Mudhi, Abdullah Dhiyab Mudhi, and Bandar bin ‘Abbas al-As’adi, all stateless persons hailing from Iraq or Syria.

No other judges participated in either session, ‘Iyada said, but the verdict, issued on March 29, 2011, bears the signatures of two other judges, Ibrahim Abdullah al-Nukhailan, and Muhammad Ibrahim bin Qa’ud; Saudi law requires a panel of three judges to try hiraba cases. The family of ‘Iyada learned in early December that a Cassation Court has confirmed the verdict.

International Standards on Torture Investigations and Fair Trial

As a state party to the Convention against Torture, Saudi Arabia has an obligation to start a prompt and impartial investigation into allegations by ‘Iyada and his co-defendants that their interrogators had tortured them. Although the verdict mentions that all but one of the defendants retracted their confessions in court as the result of beatings and torture, no such investigation has taken place to date to the knowledge of Human Rights Watch. The Convention also requires Saudi Arabia to ensure that any statement obtained as a result of torture is not used in evidence against the person who was tortured.

Saudi Arabia is not a party to International Convention on Civil and Political Rights (ICCPR) that sets out the elements of a fair trial, but in 2009 the kingdom acceded to Arab Charter for Human Rights, which sets out similar rights. Fair trial rights enumerated in the ICCPR are also considered part of international customary law. These rights include the right to have the assistance of a lawyer at all stages of pretrial detention and trial, the right to have adequate time and means to prepare a defense, and the right to challenge the prosecution’s evidence. The Saudi Code of Criminal Procedure also guarantees these rights.  From the evidence at our disposal, it appears that in the trial of ‘Amir ‘Iyada, these rights were flagrantly denied and that for this reason he should be set free or granted a new and fair trial.  In any event, the punishment that the court imposed on him should not be carried out.

I look forward to hearing from you about your endeavors in this case.

 

Sincerely,

Christoph Wilcke

Senior Researcher

Middle East and North Africa Division