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VIII. Denial of Legal and Other Appropriate Assistance

Saudi Arabian law does not guarantee children accused of crimes free legal assistance, and children can be questioned and tried in the absence of a lawyer or guardian. While Ministry of Social Affairs staff are required to attend interrogations held in juvenile detention centers, when Human Rights Watch visited the Riyadh Social Observation Home these staff members did not appear to provide meaningful assistance in presenting a defense or resisting coercion to give testimony to one boy we observed undergoing questioning or to other boys awaiting questioning in the same room. Government regulations also allow police located far from juvenile detention centers to bring children accused of minor offenses to their offices for questioning. In these cases children have even fewer opportunities for legal assistance and protections against coerced testimony, and no recourse to judicial review of decisions taken by the head of the local law enforcement agency to “resolve” cases (see below).

The Convention on the Rights of the Child guarantees every child deprived of his or her liberty “the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”¹⁸¹ Every child charged with a criminal offense also has the right to “legal or other appropriate assistance in the preparation and presentation of his or her defence,” and any trials should take place “in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child … his or her parents or legal guardians.”¹⁸²

In its General Comment on children’s rights in juvenile justice, the UN Committee on the Rights of the Child has stressed the importance of the right to legal and other appropriate assistance, noting that “it should be free of charge,” and should “as much as possible” include “adequate trained legal assistance, such as expert lawyers or paralegal professionals.”¹⁸³ Among other things, the Committee drew attention to the centrality of the child’s right not to be compelled to give testimony or to confess guilt, requiring states to provide “independent scrutiny of the methods of interrogation to assure that the evidence is voluntary and not coerced, given the totality of the circumstances,” and requiring judicial bodies to consider “the age of the child, the length of custody and interrogation, and the presence of legal or other counsel, parent(s), or independent representatives for the child” when considering the voluntariness and reliability of an admission or confession by a child.¹⁸⁴

Interrogations and Trial in Ministry of Social Affairs Facilities

As noted above, Saudi Arabian law specifies that interrogations and trials of children and of women under age 30 should take place inside social observation homes and girls’ and young women’s welfare institutions.¹⁸⁵ According to the Ministry of Justice, a single judge presides over juvenile trials, except in cases in which the potential sentence is death, stoning, or amputation, in which case rulings are made by a panel of three judges. Trials are closed to the public, and a member of the Bureau of Investigation and Public Prosecution does not normally attend.¹⁸⁶

In its November 2004 report to the Committee on the Rights of the Child, Saudi Arabia stated, “The law allows the child to have his or her own defence lawyer.”¹⁸⁷ In fact, a careful reading of Saudi Arabian law makes clear that the right to legal counsel is extremely limited and difficult to invoke. The Law of Criminal Procedure states that persons under investigation or on trial have “the right to seek the assistance of a lawyer or a representative,” but it does not require authorities to inform suspects or persons charged with a criminal offense of their rights, and it does not provide for free legal assistance for persons who cannot afford it.¹⁸⁸ When Human Rights Watch asked Head of the Supreme Judicial Council Shaikh Salih al-Luhaidan why Saudi Arabia does not provide poor defendants with free legal assistance, he told us, “If the case involves an injury, a murder, a theft, then it does not require an attorney—it requires witnesses, evidence, and the individual to defend himself.”¹⁸⁹

The law requires the criminal investigation officer to take the suspect’s statement immediately after arrest, and, if the suspect does not prove his innocence, to refer him to the prosecution officer who must begin interrogation within 24 hours of arrest.¹⁹⁰ The head of the Bureau for Investigation and Public Prosecution, Shaikh Muhammad Al Abdullah, explained to Human Rights Watch, “The law does not say that we have to wait for a lawyer to show up before we start an interrogation. We will not hold somebody forever.”¹⁹¹

When investigators question children in social observation homes and girls’ and young women’s welfare institutions, regulations require the director or his delegate to attend “so that the interrogation takes place in an atmosphere that makes the [child or young woman] feel reassured and psychologically relaxed.”¹⁹² The regulations do not, however, require the director to provide legal assistance or otherwise advocate on the child’s behalf. Nor do the regulations require the presence of a guardian during the child’s questioning or at trial. According to the director of the Riyadh Social Observation Home, his staff notify guardians as soon as a boy arrives, but many boys are from towns 80 to 200 kilometers away from the home and guardians cannot attend.¹⁹³ A staff member assumes the role of the child’s guardian if the actual guardian does not attend the questioning or trial, he said. 

In practice, investigators’ conduct of interviews with children inside at least the one social observation home that Human Rights Watch visited did not appear to conform to domestic regulations or to international standards. Ministry of Social Affairs officials did not allow Human Rights Watch to attend trials or speak to detainees in social observation homes or girls’ and young women’s welfare institutions. However, while visiting the Riyadh Social Observation home we were able to observe from a distance a young boy being questioned and other young boys awaiting questioning in circumstances that the director told us were typical.  No lawyers or guardians were present and we saw no one else offering the boys meaningful assistance. The staff member assigned to participate in interrogations sat in a separate room with the door closed, did not interact with the boys, and at best could watch but not hear the interrogations through a window at a distance of several feet.    

No interrogations were in progress at the Riyadh Girls’ and Young Women’s Welfare Institution at the time of Human Rights Watch’s visit. However, according to a Ministry of Social Affairs supervisor, lawyers do not routinely attend interrogations or the sessions where judges visit the facility to adjudicate cases.¹⁹⁴ Distance is even more likely to be a barrier to families attending interrogation and trials at social observation homes for girls and young women, because there are only four girls’ and young women’s welfare institutions for the entire country. In contrast, the Ministry of Social Affairs operates 13 juvenile detention facilities—one in each administrative region—designed exclusively for children, which accept both foreign and Saudi Arabian boys ages 12 to 18, and the Ministry of Interior operates an additional 35 prisons for men and, in some cases, women over 30, spread across all administrative districts.¹⁹⁵

Saudi Arabia’s failure to provide children with free, trained legal assistance in preparing and presenting a defense may be especially damaging at the trial stage, where judges routinely act as both adjudicator and prosecutor and can alter the charges at any time.¹⁹⁶ Without such assistance, detained children cannot reasonably be expected to bring and cross-examine witnesses, or avoid making self-incriminating statements, for example.  A child who is unable to introduce exculpatory evidence at trial faces the additional obstacle when pursuing an appeal because the Law of Criminal Procedure specifies that Appeals Court rulings are based on the evidence included in the file of the case, and defendants only appear before the Appeals Court at its request.¹⁹⁷

Ministry of Social Affairs regulations require that ministry staff provide the juvenile court judge with a detailed social report on each child who comes before him, and that the report include a treatment plan and recommended measures to be taken.¹⁹⁸ Saudi Arabian authorities declined Human Rights Watch’s request to attend juvenile court hearings and interview judges, making it difficult to evaluate the quality of these reports and their impact on judicial rulings. The director of the Riyadh Social Observation Home told Human Rights Watch that his staff usually prepares such reports in one day, although they sometimes spend more time on a file if they know that the judge will not come for several days. Social workers at the Riyadh Girls’ and Young Women’s Welfare Institution have fewer cases and, thus, may spend more time on evaluations.¹⁹⁹

The procedures described above do not adequately ensure every child’s right to prompt access to legal and other appropriate assistance during interrogation, trial, and for the preparation and presentation of his or her defense. Ensuring adequate assistance is particularly crucial in death penalty cases and in cases involving younger children and children with lower levels of development, who are at greater risk of being compelled to give testimony or confess guilt. In capital cases lawyers charge particularly high fees. For example, the lawyer in the death penalty case against Muhammad al-Qahs, described in Chapter V, above, requested 500,000 riyal (about $133,300) in fees to take the appeal, while Sri Lankan officials expect legal fees to appeal the death sentence against Rizana Nafeek to reach 3 million riyal (about $800,000). ²⁰⁰ Human Rights Watch fears that this places trained legal assistance out of reach for most defendants, and may force families to forgo a lawyer in order to conserve money for a possible diya settlement.

Equally important, few lawyers in Saudi Arabia specialize in criminal law, and even fewer have experience with capital cases involving children. Saudi Arabia has only recently begun to give serious consideration to the role of criminal defense lawyers, including issuing a Code of Law Practice that sets forth rights and duties of the legal profession. ²⁰¹  Despite a rising number of legal (including Sharia) consultants, Human Rights Watch does not know of a single professional full-time criminal defense lawyer in Saudi Arabia, nor a single lawyer specializing in cases involving juveniles.

In the case of Ahmad al-Dukkani (also described in Chapter V) the lack of legal assistance during the initial stages of the investigation appears to have contributed to the then-13-year-old’s confession to murder and to the court’s decision to try him as an adult. In a 2005 interview, al-Dukkani said he confessed to the murder after his third interview with the police, when “my strength dwindled and I lacked the capacity to refuse.”²⁰²  

Muhammad al-Qahs told Human Rights Watch that he did not know the provisions of Saudi law relevant to claiming self-defense. Al-Qahs told Human Right Watch that police held him for a week in a police station before transferring him to the Abha Social Observation Home. He did not even know that the deceased’s family was asking for the death penalty until his initial hearing, several months later, and he did not secure a lawyer until after the Supreme Judicial Council had overturned an Appeals’ Court ruling in his favor, more than three years after the killing. That lawyer, based in the distant city of Riyadh, does not appear to have conducted his own investigation, and according to al-Qahs “did not do anything” despite having requested 500,000 riyal payment for his services.”²⁰³

Even when children do have a lawyer’s or guardian’s assistance, it is not clear what advice, if any, that person can provide during an ongoing interrogation. According to the Law on Criminal Procedure, “The representative or attorney shall not intervene in the investigation except with the permission of the investigator. In all cases, the representative or attorney may deliver to the investigator a written memorandum of his comments, and the investigator shall attach that memorandum to the file of the case.”²⁰⁴ Nor is it clear what weight judges give to a lawyer’s memorandum: as noted earlier, the head of Saudi Arabia’s highest judicial body, which also reviews all death sentences, has stated that he does not believe that a lawyer is necessary in murder cases.

Interrogations outside of Ministry of Social Affairs Facilities

Saudi Arabian regulations allow police to question children in police stations if there is no social observation home or girls’ or young women’s institution in the vicinity.²⁰⁵ These regulations appear to be intended to facilitate the quick resolution of children’s cases, without the need to transport the children to a distant institution or to hold them in a facility with adults. Nevertheless, they also open the possibility to other forms of abuse by giving law enforcement officials discretion to “resolve” cases without specifying what such resolutions may entail and without any apparent mechanism for appeal, and by failing to guarantee the child the assistance of someone whose primary concern is the child’s best interests. Human Rights Watch is particularly concerned about the prominent role draft legislation updating these regulations gives to the Commission for the Promotion of Virtue and Prevention of Vice in determining children’s criminal responsibility, given the many documented complaints against Commission members for abuses (see above).

A Council of Ministers Decree issued in 2000 authorizes chiefs of local police stations located more than 150 kilometers from the nearest juvenile detention center to personally “resolve” “minor cases” and certain cases not requiring investigation if they are committed by girls and women under 30 years old and boys ages seven to 18.²⁰⁶ The decree does not specify what constitutes a minor case or what constitutes an acceptable resolution to such cases. If the police chief cannot resolve the case, the decree authorizes him to conduct an investigation and order the suspect’s release on bail if there is not sufficient evidence to bring charges, or to transfer the suspect to a judge if there is.²⁰⁷ The investigation must take place in the presence of a representative of the local Ministry of Social Affairs branch, or if there is no local branch, in the presence of a member of the Commission to Promote Virtue and Prevent Vice.²⁰⁸ The decree requires the suspect’s guardian be present if the case is being resolved without a formal interrogation, but does not require this if an interrogation does take place.

In October 2006 the Shura Council’s Social Affairs Committee recommended a new decree making a number of changes in the provisions of the earlier decree. The new decree would apply to girls and young women under 30 and boys ages 12 to 18 and to areas 70 kilometers or more from the nearest social observation home or girls’ or young women’s welfare institution. Unlike the earlier decree, which only applied to police chiefs, the new decree would apply to all law enforcement agencies, and would require the presence of the suspect’s guardian during interrogation, unless the head of the law enforcement agency decided otherwise.²⁰⁹

If passed, the requirement that a guardian attend interrogations could provide some greater protections for children and young women living far from Ministry of Social Affairs detention centers. However the amendments do not address the underlying problem that children suspected of criminal offenses do not have a right of access to adequate legal assistance in preparing and presenting a defense. In addition, girls are more likely to find themselves questioned in police stations or other law enforcement agencies rather than welfare institutions because they are more likely to live far away from a welfare institution (as there are only four in the entire country) and, if the pattern in Riyadh holds in other areas, are also more likely to be charged with minor offenses, including mixing and seclusion. Human Rights Watch was unable to interview police who had participated in questioning of children in their police stations. However, indications from similar research elsewhere give cause for concern. One factor for concern is that local law enforcement authorities in general and Commission for the Promotion of Virtue and Prevention of Vice in particular are more likely to lack specialized training in children’s rights and child development that would help them overcome societal prejudices that limit children and women’s autonomy and emphasize the interests of the family and the community over the best interests of the child.²¹⁰