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IV. Background on the Criminal Justice System

Violations of defendants’ rights in Saudi Arabia’s criminal justice system are so vast, fundamental, and systemic that Human Rights Watch has concluded elsewhere that Saudi Arabia’s criminal justice system does not, as a general matter, adhere to the principles of the rule of law. ¹¹ Saudi Arabia has no codified penal law, and very few laws or regulations explicitly address child offenders. As a result, law enforcement officials, judges, and prosecutors have very broad discretion to determine issues such as when to arrest children, how long to detain them, and what punishments to impose on those deemed to have broken the law. These gaps in legislation and regulation leave children vulnerable to arbitrary arrest and detention, unfair trial, and criminal penalties that violate their fundamental rights.

Overly-Broad Judicial Discretion

Saudi Arabian law specifies that all criminal punishments must be in accordance with Sharia or statutory law, and that courts shall apply Sharia precepts, as derived from the Quran and the Sunna (the traditions of the Prophet Muhammad), as well as statutory laws that do not conflict with the Quran and the Sunna.¹² The Saudi government does not publish an official interpretation of Sharia, a written penal code, or aninterpretative text carrying the force of law of the precise definitions of acts that constitute criminal offenses. Statutory laws, known as regulations to distinguish them from Sharia, are issued by the prime minister, who currently is also the king.

Many Sharia precepts are not readily accessible to laypeople, and jurists and legal scholars seeking to understand these precepts and their applications study the Quran, the Sunna, and the work of previous great scholars, often for years. The task of interpreting and applying Sharia in criminal cases largely falls to the judiciary, composed of courts and judges, a Supreme Judicial Council, a Council of Senior Scholars, a mufti, and a Ministry of Justice. The judiciary is not bound by previous court rulings when determining which actions constitute crimes and what the attendant punishment should be, and there is little evidence that judges seek to apply consistency in sentencing for similar crimes. ¹³  As a result, the definitions of crimes and nature and severity of punishments may vary from case to case.

Saudi Arabia’s Law of Criminal Procedure, in force since 2002, sets forth the procedures relating to arrest, detention, and trial in criminal cases. The law specifies that “[t]he investigation and trial of juvenile offenders, including girls and young women, shall be conducted in accordance with the relevant laws and regulations,” but the government has yet to issue laws and regulations specifically addressing arrest, investigation, trial, and sentencing procedures for children in conflict with the law.¹⁴ A 1969 instruction from then-chief judge Shaikh Muhammad bin Ibrahim Al al-Shaikh provides courts with general principles for handling cases involving youth accused of criminal offenses, but it does not specify to which age groups it applies and does not explicitly address girls in conflict with the law.¹⁵ 

Saudi Arabia does have a system of juvenile courts, and separate juvenile detention facilities for boys, although not for girls (who are held in facilities with adults). The juvenile courts are staffed by regular judges drawn from the ranks of Sharia court judges assigned to the same district as the juvenile detention center.¹⁶ According to a Ministry of Justice official, a given judge usually serves a three- or six-month term in the juvenile court, and may not serve again for years,¹⁷ although Ministry of Social Affairs officials in Riyadh told Human Rights Watch that juvenile court judges there serve three- to four-month terms before being transferred to other duties.¹⁸ Human Rights Watch was unable to determine whether judges receive any specialized training in adjudicating children’s cases. The director of the Riyadh Social Welfare Home told Human Rights Watch, “A good judge should have some social training, but some judges don’t distinguish between children and adults, or don’t know the recent developments in the field.”¹⁹

Arbitrary procedures for determining age of majority in criminal cases

Under international law, the special procedures for juvenile justice set forth in the Convention on the Rights of the Child apply to all persons under age 18 at the time of the alleged offense, regardless of the individual’s age at the time of trial or sentencing.²⁰ However, as Saudi Arabia neither provides that those under 18 at the time they committed a crime should be dealt with solely in the juvenile justice system, nor requires judges to base their determinations on children’s age at the time of the offense, authorities impose sentence based on the individual child’s characteristics at the time of trial, sentencing, or execution of sentence. This is part of the judges’ wide discretion to interpret Sharia. So too is determining when a child can be treated as an adult for the purposes of imposing the death penalty and corporal punishments that include amputation and flogging (see below).

Judicial opinions on when a child can be tried as an adult vary widely, and frequently depend on measures of children’s physical development, contrary to international standards, which call upon states to make determinations of adult competence based on “emotional, mental and intellectual maturity,” and not the child’s physical maturity.²¹ For example, Sharia scholar Shaikh Ahmad bin Hamad al-Mazyad, who has served as a senior advisor to the Ministry of Justice for more than 20 years, told Human Rights Watch that judges decide that a person has reached majority (baligh)based on known physical signs of puberty (bulugh, which can also be translated as “majority”), saying that it was acceptable to execute a nine-year-old girl sentenced if she had reached puberty (for further on this see Chapter V, “The Juvenile Death Penalty,” below). He also stated that according to Sharia, age 15 was “the outside limit” for majority (bulugh), so that a child age 15 or older who lacked these signs could still be sentenced and executed if found to have committed murder.²² This reliance on physical characteristics, especially when combined with delays in bringing children to trial, may increase the likelihood that judges will decide to try as adults persons who were under 18 at the time of the offense, simply because with the passage of time it becomes more difficult to assess a child’s level of development at the time of the offense.

Even people knowledgeable about the juvenile justice system often focus inappropriately on whether children have attained majority at the time of the execution of a sentence, and not at the time of the offense. For example, members of the National Commission for Childhood and of the Council of Ministers’ committee drafting Saudi Arabia’s child law told Human Rights Watch that the new law will define a child as anyone under age 18 but that this provision would not prevent judges from issuing death sentences for crimes committed while under age 18. Instead, it will only require that execution be postponed until the child turned 18.²³ `Abd al-`Aziz al-Qasim, a Saudi Arabian lawyer in the Sharia courts, told CNN Arabic that he doubted that the government would execute 14-year-old Fawaz Masha`al before he turned 18 because “the standards for implementing the sentences in these kind of cases is attaining the age of majority (bulugh sin al-rushd),” and that “some experts in fiqh [Islamic jurisprudence] consider the appearance of signs of [physical] maturity to be the equivalent of having reached the age of majority, while other experts in fiqh go toward 20 as the age of majority, and while there is nothing clear in the text of the law in Saudi Arabia specifying this age, it is moving toward being 18.”²⁴

In its 2007 report on human rights, Saudi Arabia’s National Society for Human Rights called on the government to set a unified age of majority for both criminal and civil matters at 18, saying that doing so would comply with Saudi Arabia’s obligations under both the CRC and Islamic law.²⁵ However, the recommendation does not address the need for measures to ensure that this standard be applied at the time of the offense, and not at the time of trial, sentencing, or execution of sentence.

Weak Protections against Arbitrary Arrest and Detention

Saudi Arabia’s Law on Criminal Procedure lists 20 types of person and entity authorized to arrest and investigate criminal suspects in matters relating to their competencies, including regional governors, prison officials, General Directorate of Passports officers, and heads of centers of the Commission for the Promotion of Virtue and Prevention of Vice (CPVPV). ²⁶ In practice, deficiencies in the Law of Criminal Procedure, the absence of a written penal code, and ill-defined roles for these law enforcement authorities leave children and adults vulnerable to arbitrary arrest and detention.

The Law on Criminal Procedure allows an arresting officer to detain and question suspects for up to 24 hours before referring them to an investigator from the Ministry of Interior’s Bureau of Investigation and Public Prosecution, a nominally independent agency subject to extensive oversight by the minister of interior.²⁷ The Bureau does not currently have investigators specializing in juvenile cases, although it is considering establishing juvenile sections in the future.²⁸ The Law on Criminal Procedure further specifies that arrests only take place on the basis of an order from a competent authority or, if a crime is in progress, when the arresting officer has sufficient evidence to suspect an individual.²⁹ However, the absence of a written penal code specifying what acts constitute crimes allows authorities broad scope to arrest and question individuals for acts that a court may later determine are not criminal offenses. Upon referral, a Bureau investigator must begin questioning the suspect or release him or her within 24 hours.³⁰ However, the law also requires the suspect to demonstrate his or her innocence in order to be released.³¹

Once law enforcement officers refer a suspect to the Bureau of Investigation and Public Prosecution, investigators there can order a suspect detained for up to five days from the date of arrest, and the Bureau’s director can extend the detention for up to six months before having to release the detainee or refer him to a judge who could order his release.³² During this period a detainee has no right to challenge the legality of the detention. Bureau of Investigation and Public Prosecution officials have broad discretion in determining when and how long to detain suspects, because the law does not specify minimum standards of what officials must prove when issuing detention orders.³³ The same rules apply to children as to adults.³⁴

The Law of Criminal Procedure fails to meet Saudi Arabia’s obligations under international law, which guarantees every detainee, including children, deprived of his or her liberty 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.³⁵

The Commission for the Promotion of Virtue and Prevention of Vice

Saudi Arabia’s Commission for the Promotion of Virtue and Prevention of Vice has both law enforcement and religious guidance functions, although the line between the two functions often is not clear.³⁶  Members of the CPVPV fill social worker and other roles at detention centers for boys and for girls and young women.³⁷  A 1980 law empowers these religious police, who answer only to the prime minister, to arrest, detain, and interrogate persons for undefined criminal offenses. In 2005 the CPVPV’s 5,000 religious police officers, together with 5,000 volunteers, carried out more than 400,000 arrests.³⁸ Since 2006 these agents, who do not wear uniform, must wear identifying badges and may only make arrests when accompanied by a regular policeman.³⁹ However, on July 2, 2007, Interior Minister Prince Nayef reaffirmed a 1981 royal decree prohibiting the religious police from detaining and interrogating suspects at their centers.⁴⁰ The statement followed a May 2007 incident when CPVPV agents stormed a Riyadh home without a warrant in search of illegal alcohol and beat one person to death.  In 2007, CPVPV members were facing criminal charges of murder and abuse of power in this and two other, separate incidents, reportedly for the first time in their history.⁴¹

According to the 1988 Executive Regulations to the 1980 CPVPV law, the Commission is authorized to monitor mixing of the two sexes and women adorning themselves excessively; transgendered behavior; men’s advances toward women; saying obscenities; disrupting prayer by playing media near mosques; practicing or displaying non-Muslim faiths or disrespecting Islam; displaying or selling media contrary to Islam, including pornography, the Christian cross, the star of David, pictures of Buddha or the like; producing, distributing, or consuming alcohol; committing or facilitating lewdness, including adultery, homosexuality, and gambling; adhering to heresies by venerating places or celebrating events inconsistent with Islamic orthodoxy and orthopraxis; practicing magic for money; and shortchanging customers. The CPVPV also monitors halal slaughter houses; exhibitions; and women’s tailors.⁴² Only few of these acts could, in serious cases, conceivably amount to criminal offenses, such as sexual harassment, public disturbance, or pornography.

Minimum Age of Criminal Responsibility

Under the Convention on the Rights of the Child, states must set a minimum age of criminal responsibility (MACR), below which they cannot formally charge children with a criminal offense or hold them responsible under the penal law.⁴³ The UN Committee on the Rights of the Child, the authoritative body that monitors the convention’s implementation, has concluded that “a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable.”⁴⁴

In January 2006 the government of Saudi Arabia informed the Committee on the Rights of the Child that it had raised the minimum age of criminal responsibility to 12 years. According to the head of criminal prosecutions in the Bureau of Investigation and Prosecution, police do not arrest children under 12, and prosecutors do not interrogate them.⁴⁵ If true, this would represent a significant advance on previous practice, which had set the minimum age of criminal responsibility at seven years.

Human Rights Watch has sought but been unable to obtain a copy of the Council of Ministers decree reported to raise the minimum age of criminal responsibility, or confirm the categories of children covered by the decree and the steps the government has taken to implement it.⁴⁶ Statements by government officials suggest that it is not being fully implemented, and does not apply to some crimes punishable by death (see above) and to girls. Shaikh Ibrahim al-Gheith, President of the Commission for the Promotion of Virtue and Prevention of Vice, told Human Rights Watch in December 2006 that there was no minimum age below which children could not be arrested. As an example, al-Gheith said that a member of his staff who stopped a 10-year-old who had committed “a personal mistake” would only speak with the child, but “if there is a criminal element, we take the case to the police.”⁴⁷ Ministry of Social Affairs officials told Human Rights Watch in March 2008, “The Council of Ministers decree on minimum age of criminal responsibility only applies to boys. There is no minimum age of criminal responsibility for girls because our experience is that girls are older when they come into the system.”⁴⁸ The director of the government Anti-Begging Office in Mekkah told Arab News in April 2007 that he arrested children as young as eight, while the director of the Jeddah Anti-Begging Office told the same newspaper in May 2007 that he had arrested children as young as 10.⁴⁹ Regulations for juvenile detention centers for boys appear to have been amended to raise the minimum age for entry to 12, although the Ministry of Justice website’s description of juvenile courts continues to describe these courts as applying to “those between age seven and 18.”⁵⁰ In addition, October 2006 draft legislation updating arrest and investigation procedures for children arrested in geographical areas without juvenile detention centers sets no minimum age for girls, although it explicitly raises the minimum age for boys to 12.⁵¹

Pervasive Discrimination against Women and Girls

Although Saudi Arabia is a party to the UN Convention on the Elimination of  All Forms of Discrimination against Women (CEDAW),⁵² gender-based discrimination against women and girls is severe and pervasive in Saudi Arabia.⁵³ Law and practice deny women equal enjoyment with men of fundamental rights, including legal standing before the courts.

Saudi Arabia’s system of legal guardianship is a further barrier to women’s and girls’ access to justice in the criminal legal system. Under the government’s interpretation of Sharia, girls and women of all ages lack legal competency and must be under male guardianship, generally that of a father, husband, or son.⁵⁴ These guardians have tremendous power in influencing the outcome of women’s and girls’ interactions with the criminal justice system: Police frequently require women and girls to obtain their guardian’s permission to file a criminal complaint, even when the complaint is against the guardian.⁵⁵ Detained women and children can only be released to the custody of a guardian, leaving them vulnerable to indefinite detention (see below), and mothers cannot represent their children in legal proceedings because they lack guardianship. 

Saudi Arabia also excludes women from key decision-making roles in the criminal justice system. Saudi Arabia has no female judges, practicing lawyers,⁵⁶ members of the Bureau of Investigation and Public Prosecution, or law enforcement officers. In a highly gender-segregated and conservative society such as Saudi Arabia’s, this means women and girls must argue their cases before individuals who often question the legitimacy of their very presence outside the home. For example, Human Rights Watch interviewed women who participated in cases where the judge only allowed women to give testimony through a male representative because the judge deemed the sound of a female voice to be shameful (`awra).⁵⁷ 

Women and girls also face discriminatory treatment during detention (see below). Foreign girls under investigation, facing trial, or whom a judge has ordered detained, are held in adult detention centers, unlike foreign boys in the same situations, and detention centers for Saudi nationals routinely mix girls with adults. Saudi Arabia also has far fewer detention facilities for girls than for boys, making it more likely that girls will be detained far from their families, and judges visit these facilities less frequently than they visit boys’ detention centers.

Detention Centers for Children

Saudi Arabian authorities detain children in detention facilities run by the Ministry of Social Affairs and in immigration detention facilities and women’s prisons run by the Ministry of Interior.⁵⁸

The Ministry of Social Affairs operates 13 social observation homes (dur al-mulahatha al-ijtima`iya), used to hold Saudi Arabian and foreign boys ages 12 to 18 who are under investigation, are facing trial, or whom a judge has ordered be detained. There are also four girls’ and young women’s welfare institutions (mu’assasat ri`ayat al-fatayat), used to hold Saudi Arabian girls and young women under age 30 who are under investigation, facing trial, or whom a judge has ordered detained.⁵⁹ Regulations for juvenile detention centers run by the Ministry of Social Affairs specify that questioning and trials for boys under 18 and girls and young women under 30 must take place in these centers, but they provide little guidance on special procedures to ensure that children’s rights are protected during questioning, trial, or detention (see below). Moreover, while social observation homes accept boys who are not Saudi nationals, girls’ and young women’s welfare institutions do not accept foreigners, whom the government instead holds in women’s prisons operated by the Ministry of Interior.⁶⁰

In addition to these detention facilities, the Ministry of Social Affairs also operates three Residential Centers for Child Beggars (marakaz iwa’ al- atfal al-mutasawwilin) for younger foreign boys and girls who are arrested for begging, lack legal residency, or otherwise are subject to deportation.⁶¹ Older children may be held in Ministry of Interior immigration detention facilities for adults. Neither type of immigration detention facility appears to be subject to judicial oversight.

According to the government, in 2004 it detained 12,963 children under age 18 in “facilities for persons below eighteen in conflict the law [sic]” and “in adult facilities,”⁶² including 9,158 Saudi males, 1,625 Saudi females, and 2,180 non-Saudi males. The actual figure may be much higher, as these figures do not appear to include children held in immigration deportation centers or Ministry of Social Affairs centers for child beggars, or foreign girls held in Ministry of Interior prisons.⁶³