The Universal Declaration of Human Rights states in Article 9, No one shall be subjected to arbitrary arrest, detention or exile. Article 9 of the ICCPR specifies, No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.147 Article 14 of the amended Arab Charter on Human Rights, to which Saudi Arabia has acceded and which entered into force in 2007, states, No one shall be subjected to arbitrary arrest, search or detention without a legal warrant.
According to the United Nations Working Group on Arbitrary Detention, deprivation of liberty is arbitrary [w]hen it is clearly impossible to invoke any legal basis justifying the deprivation of liberty.148 In order for an arrest not to be arbitrary it is not enough to follow the procedures of the law, such as issuing formal but unsubstantiated charges: as the UN Human Rights Committee explained, arbitrariness is not to be equated with against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.149 The UN Working Group has pointed out that the practice of arresting persons without a warrant, not informing them of the reasons for their arrest, and not filing charges against them within a reasonable period of time also renders their detention arbitrary, in contravention of articles 8, 9, 10, and 11 of the UDHR and articles 9 and 14 of the ICCPR.150
In Saudi Arabia two practices that exemplify such arbitrary deprivation of liberty are detentions for activity that cannot be regarded as unlawful and detention beyond the expiry of a criminal sentence. In Saudi Arabia individuals are also liable for detention in the event that they have not paid private debts, a ground generally prohibited under international human rights standards as it is considered akin to debt bondage or slavery. More specifically, article 11 of the ICCPR states, No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation, which extends to prohibiting the deprivation of personal liberty either by a creditor or by the state for failure to pay a debt.151
Under Saudi law there is much that is prohibited. As results often, the prosecution faces little challenge in substantiating the factual basis of the alleged criminal offense with which a defendant is charged. However, the imprecise criminal nature of the charges themselves casts doubt on whether a crime has occurred. The absence of codified criminal provisions leads prosecutors and judges to belabor theories of sovereignty, obedience to the ruler, and other poorly defined concepts in Saudi legal practice, so that those legal practitioners seem to share this inverted legal concept: whatever is not permitted by law is forbidden.152
Examples of how legitimate exercise of basic freedoms can be categorized by the legal system as criminal acts are several. Samih was arrested in late 1999. He was initially detained in Malaz prison, because Riyadhs governor, Prince Salman, had accused him of stealing money. On December 25, 1999, the mabahith transferred him out of that prison and accused him of belonging to a non-religious party, and of being the secretary-general of the Communist Party. Salih explained that under torture during interrogation
A prosecutor charged Badi with an alleged criminal offense of contacting Al Jazeera television, which the judge accepted. Badi had contacted Al Jazeera from his home in the Eastern Province and gave an interview regarding an incident in Najran in April 2000. One-and-a-half years after the interview, the mabahith of Dammam arrested Badi. Badi told Human Rights Watch that after he spent two months in an underground cell alone, officers brought him to a judge and the prosecutor presented four charges:
Ghalibs experience is similar. Ghalib told Human Rights Watch that he criticized the government on Al Jazeera in 1998, but was not arrested until October 2004, after he took part in a demonstration in Jeddah called by the UK-based Saudi dissident Sad al-Faqih. After 15 days in detention, a judge summarily sentenced him and six others to six weeks in prison because he went beyond the limits of obedience to the ruler.155
In the case of Ali al-Dumaini, Abdullah al-Hamid, and Matrook al-Faleh, mentioned above in chapters III and V, five months after their arrest on March 16, 2004, the prosecution presented its charge sheet in the first court hearing. The undated charge sheet lists the three defendants and then accuses them of
The criminal charges, insofar as these can be discerned, appear to be
One of the three defendants in the 2005 trial for writing and publicizing these reform petitions, Dr. Abdullah al-Hamid, and his brother Isa al-Hamid, again faced charges in a Buraida court in September 2007, for carrying out their duties as lawyers toward their clients. Saudi intelligence forces had arrested Abdullah and Isa al-Hamid on July 19, together with a group of five women who had been peacefully demonstrating on July 16 in front of the intelligence prison for the speedy trial of their relatives. The mabahith arrested the Hamid brothers at the home of one of the demonstrators, Rima al-Juraish, in Buraida, capital of Qasim province, in the course of attempting to arrest al-Juraish. When Abdullah al-Hamid, who is the lawyer for Juraishs detained husband, Muhammad al-Hamili, demanded to see an arrest and a search warrant, the mabahith also arrested him and his brother `Isa, before breaking down the door to al-Juraishs home and arresting her. The mabahith arrested four other women who had demonstrated with al-Juraish: Manal al-`Umairini, Badriya al-`Umairini, Afrah al-Fuhaid, and Ashwaq al-Fuhaid. They and the al-Hamid brothers were released after a few days.157 One month later, other family members held a similar demonstration, and the mabahith arrested them and Muhammad al-Bajadi, a human rights activist.
At trial on September 8, Abdullah and Isa al-Hamid faced charges of trying to enter a police cordon around al-Juraishs house and of encouraging the women to demonstrate. Observers at the trial reported that the judge at the Buraida Summary Court, Ibrahim Abdullah al-Hasani, declared the first session to be closed to the public.158 The court found the al-Hamid brothers guilty on November 7, 2007, and sentenced Abdullah to six, and Isa to four months in prison.159
A mabahith officer arrested Salah on February 21, 2007, and took him to the counter-drugs department on Salah al-Din Street in the Malaz quarter of Riyadh, where he remained in a holding facility together with persons accused of narcotics offenses. There were no interrogations or any accusations of Salahs involvement in narcotics. According to Salah, the arresting officer told him that there was a secret order from the Interior [Ministry] saying I needed to be arrested and transferred to the drugs prison ... [because] I was responsible for gathering signatures in Riyadh for the February 2 petition.160 Salah was referring to a petition asking King Abdullah to institute constitutional and political change. The petition was opened for signature and made public on February 2. Salah said he had received 15 phone calls from persons authorizing him to submit their signature. Since his arrest he twice went on hunger strike, leading to his hospitalization, demanding to be charged and presented to a judge or released.161
In another case, Jamil maintained that security forces arrested him without a warrant in October 2003, did not inform him of the reasons for his arrest, and did not charge him with a criminal act.162 After his release, Jamil sued the mabahith for wrongful arrest. In his filing to the Board of Grievances, he noted that a representative of the mabahith had presented a memorandum to the Board in which he justified the arrest by stating that Jamil had
Jamil told Human Rights Watch that since he initiated his lawsuit against the mabahith, the agency stalled the case by failing to appear in court.164
The Commission for the Promotion of Virtue and Prevention of Vice (CPVPV) is an authorized law enforcement agency in Saudi Arabia. In 2005 the CPVPVs 5,000 religious police officers, together with 5,000 volunteers, carried out 400,000 arrests.165 Since 2006 these agents, who do not wear uniform, must wear identifying badges and may only make arrests when accompanied by a regular policeman.166 A 1980 law empowers these religious police, who answer only to the prime minister (currently the king), to arrest, detain, and interrogate persons for undefined criminal offenses. A 1981 royal decree appears to curb some of these powers by prohibiting the religious police from holding and interrogating suspects at their centers, and in 2006 the Saudi government appeared to go further by declaring that religious police must not detain or interrogate suspects or violate the sanctity of private homes.167 However, on July 1, 2007, Interior Minister Prince Nayef reaffirmed the 1981 decree, thereby apparently contradicting and rolling back the prohibition from the previous year on entering private homes. Moreover, the president of the CPVPV, Shaikh al-Ghaith, told Human Rights Watch in December 2006 that his agents can enter private homes if they learn of a serious crime in progress.168
The 1980 law lists the CPVPVs vaguely defined tasks as guiding and advising people to observe the religious duties prescribed by Islamic Sharia, and to preclude committing [acts] proscribed and prohibited [by Sharia], or adopting bad habits and traditions or taboo [sic] heresies.169 The law does not contain a classification of which acts of commission or omission are criminal, meriting arrest and investigation, and which behavior falls into the guiding and advising duties of the force.
The 1980 laws Executive Regulations, passed eight years later, are more explicit about what behavior the CPVPV monitors: Mixing of the two sexes and women adorning themselves excessively; transgendered behavior; mens 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 womens tailors.170 Only few of these acts could, in serious cases, conceivably legitimately amount to criminal offenses under human rights law. Such cases could include sexual harassment, public disturbance, or pornography.
A Riyadh-based lawyer told Human Rights Watch of a case of a woman he was representing whom the Commission for the Promotion of Virtue and Prevention of Vice had arrested in mid-2006 in a shopping mall and accused of illegal mixing. Men and women routinely mix in shopping malls in Saudi Arabia. The CPVPV released her after detaining her for a few hours, but six months later her mother received a summons for her daughter to the local Institution for Girls, where a judge swiftly charged the daughter with illegal mixing and sentenced her to a short prison term and lashes. CPVPV head Shaikh al-Ghaith told Human Rights Watch that, in his view, Islam prohibits the public mixing of men and women only if they do so with the intention to corrupt [bi gharadh al-fasad].171 In this case, however, the judge did not inquire about or prove possible intentions of the woman, but merely relied on the CPVPV report attesting to mixing.
Besides lacking a sound legal basis for its interventions that does not violate the exercise of human rights, the CPVPV does not observe the Law of Criminal Procedure when arresting, detaining, and interrogating suspects. As already noted, Shaikh al-Ghaith told Human Rights Watch that CPVPV agents can enter private homes if they learn of a serious crime in progress.172 In May 2007 CPVPV agents stormed a Riyadh home without a warrant in search of illegal alcohol, and beat one person, Salman al-Huraisi to death. CPVPV members are facing criminal charges of murder and abuse of power in this and two other, separate incidents, reportedly for the first time in their history.173 On November 28, 2007, the General Court of Riyadh found two CPVPV members not guilty of killing al-Huraisi.174 (For developments in one of the other cases, the death of Ahmad al-Buluwi following beatings during interrogation, see chapter VII, section Appointing a Lawyer.)
The CPVPV previously meted out summary punishments (15 lashes or three days imprisonment) for a wide range of infractions, under article 4b) of the 1980 law, but it appears to have generally desisted in this.175
Saudi law tasks the Bureau of Investigation and Public Prosecutions with inspecting prisons and reviewing the files of prisoners. Prosecutors have the power and duty to release prisoners for whose detention there are no legal grounds.
Article 3(f) the Bureaus law lists its duties as
Prosecutors also have a duty to inform the minister of interior of any official wrongdoing and to issue a biannual report on the situation of prisons.177 Officials accused of wrongdoing can face disciplinary proceedings by their own department, but in practice the Bureau of Investigation and Public Prosecutions and the Bureau of Supervision and Investigations within the Board of Grievances rarely initiate criminal proceedings against officials (see Part 4, chapters XI and XII).
Saudi law obliges the prison authorities to complete the procedures necessary for the release of a prisoner whose sentence finishes. Article 21 of the Imprisonment and Detention Law of May 16, 1978, states, The [prisons] administrative procedures shall not delay the release of the prisoner or detainee on the fixed date.178 Ahmad al-Salim, the secretary-general (wakil) of the Ministry of Interior, told Human Rights Watch that there is no tribunal in the Ministry of Interior and the administrative governor has no right to prolong a sentence or order an arrest. He further explained,
The Office for Prison Supervision and Execution of Sentences in the public prosecutors office is responsible for insuring the legality of [prisoners] imprisonment or detention and the legality of their remaining in prison or the detention centers after the expiry of the period, taking necessary steps to release those imprisoned or detained without a legitimate cause.180 Prison officials have questioned the effectiveness of the Prison Supervision Office. The warden of al-Hair Correctional Facility, Zhafir Said al-Haqbani, told Human Rights Watch that a visit to the prison by the National Society for Human Rights in 2004 was helpful in discovering arbitrary detentions. We had two visits by the national human rights commission. Twenty doctors [educated persons] came and they found cases of people held beyond the end of their sentences.181
The prison administration apparently does not ask the Prison Supervision Office to issue orders for the release of prisoners whose sentences finish. Ali al-Harithi, the director of Saudi Arabias prison service, told Human Rights Watch that his service is responsible for releasing a prisoner after he or she has finished the sentence: If a prisoner has reached the end of his sentence, we release him. We have the verdict.182 This appears equally ineffective: Two prisoners told Human Rights Watch that the files of an inmate in al-Hair prison had been used to prop open a window of the prison administration and could therefore not be found for three years.183 Another prisoner told Human Rights Watch that If the guard goes on vacation for a month, your file is with him and no one will touch it so nothing happens, and you cannot be released.184
During Human Rights Watchs visit to al-Hair Correctional Facility in November 2006, the prison authorities showed Human Rights Watch the Exemplary Wing 18, for prisoners of good behavior. In private, unsupervised interviews, a group of prisoners and detainees told Human Rights Watch that none of them could verify the length of their sentences.185 Nizar, a 22-year-old inmate, told Human Rights Watch that he has been in prison since November 11, 2003, on a three-year sentence, which, according to the hijri calendar,186 should then have expired on September 28, 2006. Article 24 of the Imprisonment and Detention Law states that The prisoner or detainee shall be released before the noon of the day following the day of termination of punishment or detention period. Nizar said he could not challenge his continued detention because he had no proof of the length of his sentence.187
Wing 18 inmate Umar told Human Rights Watch that, by his calculations, his four-year sentence for car theft and kidnapping should have been completed in March 2006. He said he never received a written verdict.188 Twenty-four-year-old Rashid said a judge sentenced him to six months and 150 lashes for being in a fight with others, sentence started January 21, 2006, but 10 months later he remained in detention.189
In a separate interview, Yahya, a man from Buraida told us that he personally knew of the cases of two prisoners, one of them his relative, whom the authorities had not yet set free despite having served their sentences. He said that as of December 2006, Fawzi had been in Buraidas mabahith prison for four years and ten months, despite having received a sentence of only one-and-a-half years, and Lutfi had been in al-Hairs mabahith prison around five years, despite having received a sentence of only one-and-a-half years.190
The period of pretrial detention is included in the sentence.191 Sentences may be shortened by memorizing the Quran: Prison Director al-Harithi explained to Human Rights Watch the formula whereby a prisoners sentence is reduced by up to one-half for memorizing the whole Quran, by one-quarter for memorizing half the Quran, down to a minimum reduction of one-sixth of the sentence for memorizing one-third (10 chapters) of the Quran.192 There is also the possibility for parole: under Saudi law the minister of interior can approve parole after the prisoner has served three-quarters of the sentence, but a minimum of nine months, and if he or she has displayed good behavior, provided that a release will not jeopardize public safety. However, it is not permitted to grant release under probation [parole] unless the convicted person has fulfilled all his or her financial obligations resulting from the crime he or she was found guilty of.193 Al-Harithi told Human Rights Watch that the prison service forms a committee to decide a prisoners parole status one month before three-quarters of the sentence are up.194
Asim said he received a six-year sentence in 2002 for stealing cigarettes worth US$27,000. He believed his sentence had been reduced by a total of three years18 months for good behavior and another 18 months because the injured party had dropped all claims. He also told Human Rights Watch that he had memorized 15 chapters of the Quran, for which Asim should have received a reduction of one-quarter of his sentence, or two years. If Asim received any combination of the three reductions he claimed to be eligible for, his sentence was complete at the time of Human Rights Watchs visit in November 2006. Asim called Human Rights Watch in January 2007 to say he had just been released.195
Other reasons for arbitrary detention beyond the completion of a sentence include a lack of response by the embassies of foreign nationals. Adil, age 23, said that police arrested him on March 15, 2006, and that, after waiting for three months, The judge sentenced me to three months and 30 lashes. I have had the lashes. They tell me I need to be deported but when I spoke to the Yemeni embassy they refused, because I cannot prove my nationality.196 Adil, who lived all his life in Saudi Arabia and whose Yemeni father died when he was young, said he has no documents to prove his Yemeni nationality. Hussein al-Sharif, the head of the Mekka branch of the National Society for Human Rights, which includes Jeddah, told Human Rights Watch, The problem often is that detainees have no papers, and the embassies are not cooperating. The solution may be to start fingerprinting arrivals, or require a bank deposit. In recent months, 16,000 [foreigners] have been arrested and 12,000 deported.197
Nuri, another prisoner, told Human Rights Watch that a lot of Yemenis are stuck here past the end of their sentences because they dont have tickets to go to Yemen. The Yemeni embassy only comes every four or five months and then they talk to a lot of people and say they are studying the situation.198
International law does not prohibit administrative detention, such as for foreign detainees awaiting deportation, but requires the state to demonstrate that such detention is necessary and justified in the circumstances. According to the United Nations Human Rights Committee, detention should not continue beyond the period for which the State can provide appropriate justification [ ], such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal.199
Mansur, a Yemeni detainee in al-Hair prison told Human Rights Watch that he had been in prison for 11 months The judge sentenced me to nine months in jail for fighting, but Im still here. I dont know when they will let me out. They want to deport me. The [prison authorities] tell me I have to receive 50 extra lashes because Im from Yemen.200 This man had been in pretrial detention for eight months before he saw a judge.
Lashes are usually administered in sessions of up to 50 lashes and not more than once a week. A group of prisoners in al-Hair complained of being detained arbitrarily because the flogging stipulated in the verdict had not yet been administered. One prisoner said I have finished my sentence but not the floggings so I have not been released. I don't know why I havent been flogged yet.201 Anwar, age 20, told Human Rights Watch he was afraid not [to] be released when my sentence ends in 20 days because the lashing will take so long and they still havent started.202 He said he had received a sentence of six months in prison and 250 lashes for assault. (Human Rights Watch opposes all forms of lashing and corporal punishment as cruel and degrading.)
Saudi law contains several provisions specifying the authority ordering the arrest, the person(s) to be arrested and the reasons for the arrest. Article 35 of Saudi Arabias Law of Criminal Procedure states, In cases other than flagrante delicto, no person shall be arrested or detained except on the basis of an order from the competent authority. Article 103 of the LCP gives the investigator (prosecutor) powers of arrest, but fails to define the conditions necessary for issuing an arrest warrant, requiring only that investigation circumstances warrant itsuch as when a person fails to appear voluntarily (Article 104) or where the prosecutor considers a wanted person to be a flight risk (Article 107), even if the incident is of such kind for which the accused should not be detained.203
Among the more than 60 detainees Human Rights Watch interviewed, we found only one case where law enforcement officers issued an arrest warrant. A former detainee gave Human Rights Watch a copy of this warrant, an Order to Arrest and Appear [Amr qabd wa ihdar], which bears an official stamp notarizing it as a photocopy according to the original. Khalid bin Suwaid, of the Bureau for Investigation and Public Prosecutions, signed the warrant, which specifies personal details of the person to be arrested, briefly discusses the crime attributed to him and the legal basis for the warrant (unspecified provisions of Islamic Sharia), and reproduces several articles of the Regulation against Forgery and of the LCP. This warrant, however, is not dated. Saudi law specifies that warrants are valid for execution up to three months after the date of the prosecutor issuing them.204
On February 2, 2007, the mabahith, listed in Article 26 of the Code of Criminal Procedure among legally authorized law enforcement agencies, arrested 10 persons in Jeddah without an arrest warrant, searched the house of at least one of the detainees without a search warrant, did not disclose the whereabouts of one of the detainees, and denied visits of the families and lawyers of those detained.205 Following the arrest of the 10 men, Ministry of Interior Spokesman Lt. Gen. Mansur al-Turki gave only a brief statement on the cases, indicating that some had been arrested on suspicion of funding terrorism.206 Two months later, officials suggested that the media was misrepresenting the detainees as reform advocates, but did not further characterize the charges pursuant to which they had been arrested, reiterating only that the suspicion involved recruiting fighters to send to Iraq.207
In a case of sexual harassment that has become known as the Renaissance Tunnel [Nafaq al-Nahda] case, the Criminal Investigations Branch arrested at least two men in Riyadh without a warrant. One of the arrested men, Turki, told Human Rights Watch that investigators at the police station said to him, Youll find out why youre here soon, but that instead of informing him of the charges, they started beating him. Another defendant in the case said that officers arrested him without a warrant and, a few hours later, when a friend arrived to support his alibi, they arrested the friend too.208 (For the outcome of this case, see Chapter VII, section Reasonable Doubt.)
Another young defendant told Human Rights Watch that on September 3, 2006, police in al-Malaz, a district in Riyadh, summoned and detained him about an incident involving alleged homosexual relations two years earlier. The prosecutor came and always said tomorrow, tomorrow, you will be released and repent before God, but instead I was sent to al-Hair [prison].209
Husain, a Yemeni detainee in al-Hair prison told Human Rights Watch that a few weeks after coming to Saudi Arabia he got into a fight. After police arrested him, they kept him at the police station. He told Human Rights Watch that he confessed to having been in the fight but, out of the blue, they accused me of sodomy.210
Article 11 of the Law of the Commission for the Promotion of Virtue and Prevention of Vice obliges CPVPV agents to seize the perpetrators of proscribed acts, or those accused of them, or those negligent of the Islamic Sharia duties, and [to] interrogate them.211 Article 9 of the Executive Regulations of that law obliges CPVPV officials to conduct seizure and arrest pursuant to the laws, orders, decisions and instructions pertaining to criminal procedures.212 CPVPV members also detain suspects without warrants in cases other than in flagrante delicto.213 On December 19, 2006, CPVPV members arrested Najla Umar, a Sudanese woman, from a private residence in the Salam district in Jeddah and took her to the Shimaliya CPVPV station for eight hours, until 3 a.m. She was not able to inform her husband of her whereabouts until the CPVPV later took her to a police station. After three days at the police station, with no visits allowed, prosecutor Salih al-Saidalani interviewed her, but did not issue formal charges. During the interrogation it emerged that CPVPV members had apparently arrested Umar because she had been leading a Sudanese womens self-help microcredit operation, regularly receiving money from 11 contributors who would later be eligible to receive small loans.
In another case, more than 50 CPVPV members and a large contingent of police arrested without warrants a group of families comprising 53 Indians, Pakistanis, and a Syrian at a privately-rented rest house in Jeddah, after Friday prayers on December 29, 2006. Saudi authorities eventually deported all of those arrested, although most were legal residents. CPVPV members verbally informed the groups members that they had arrested them because they were Ahmadi Muslims, but the groups members never saw arrest warrants, faced a formal charge, or saw a judge before their deportation.214 Article 10 of the Executive Regulations of the CPVPV law requires its officials to record the reasons for arrest in a register kept at the CPVPV centers,215 but the only reason given was that the arrests of the 56 individuals took place in a public facility and exceeded the governments definition of private worship.216
In September 2006 CPVPV members arrested Khalid after he challenged Commission agents who entered his café to inspect the mobile phones and identification papers of male and female customers sitting in the secluded upstairs family section. Khalid told Human Rights Watch that he asked them, Who are you? Is there someone who is wanted? I can help! He explained that this was the first time he had intervened in what had been repeated raids on his café. He said they were bad for business and he had tired of them. Khalids questions evidently did not sit well with Commission agents, who told him, Well take you, too, and dragged him to their car. At the police station, an officer told him that the Commission members had accused him of insulting public officials. After waiting for 12 hours, the officer asked him a few questions before letting him go.217 A judge sentenced Khalid on November 21, 2006, to flogging (see below).
Also in November 2006, Commission agents arrested a university student and her friend in the apartment of a man to whom she had brought her guitar to fix. The Commission members accused her of leading a prostitution ring, although they had no evidence to back up their accusation. The head of the police station to which the Commission members eventually transferred her informed her influential father of her arrest eight hours later. Her father then managed to have her released through the intervention of Riyadhs governor, Prince Salman bin Abd al-Aziz Al Saud.218
Private claims are law suits that one individual brings against another. The state acts as an adjudicator, but is not formally a party. Saudi prosecutors decide on the admissibility of private claims, and judges hear claims and decide on their merits. In Saudi Arabia, private claims can result in prison for criminal actions or for debt.
In practice in Saudi Arabia, persons are not equal under the law in private claims. Wealthy or socially influential persons can skew court proceedings in their favor, giving private citizens significant powers to detain those they bear a grudge against. The chief problem lies in the courts decisions to detain defendants before and during trial, which can drag on for years before reaching a final verdict on the mere basis of a persons claim. These detainees thus endure what amounts to criminal sanction for as yet unproven acts. Isolation in detention and a lack of financial means also impinge on their ability to defend themselves by seeking legal advice or preparing evidence for their own defense.
The codification of aspects of Sharia in the Law of Criminal Procedure allows private claims by individuals to be handled as a matter of criminal procedure. Private citizens can sue other private citizens for injuries arising from criminal acts, with resultant criminal sanction being imposed. Private claims may call for criminal proceedings, such as in locations without a public prosecutor, where citizens can ask a judge to criminally prosecute defendants for material damages they sustained (Article 17). Prosecutors may even start criminal action in cases involving a private right of action without a private complaint if doing so will serve the public interest.219 A prosecutor has three days to determine the admissibility of a private claim by whoever suffers harm in consequence of a crime,220 but the law does not specify criteria for admissibility or define harm.
The right to file private claims only lapses in two instances: upon a courts final verdict, or if the claimant grants a pardon (Article 23). In all other circumstances the private right can be invoked at any time and is hereditary, so that the children or other heirs of the damaged party may initiate or continue a suit at any time.
In accordance with Sharia rules, the holder of the private right, not the state, can insist on the execution of court-ordered punishment, accept monetary compensation, or issue a pardon. It remains unclear whether a plaintiff, acting as a private prosecutor, can ask the judge to impose a prison sentence or corporal punishment. In practice, defendants convicted in a private criminal case remain in prison until the plaintiff issues a pardon or until he or she fulfills the conditions of a court-ordered punishment, such as the payment of damages (see Appendix).
Saudi legal practice only provides minimal protections against frivolous law suits with drastic consequences for the sued party. Suitors must fill out a complaint sheet describing the harm suffered and listing the claims they are making on the other party. In more than 10 cases Human Rights Watch investigated, judges accepted claims in the suits at face value without probing actual harm suffered, leading to the preventive detention of those sued. Foreign workers face particular risk of a suit, and are often imprisoned allegedly as a preventive measure as a result of a suit that is lodged with a court but not speedily adjudicated.
In a drawn out family dispute over which of four brothers was to become the legal guardian over the affairs and wealth of their incapacitated father and their mother (who under Saudi legal practice cannot discharge of her own affairs without a male legal guardian), Ali challenged his brother Muhammads claim to guardianship and sued for his right to continue living in the family home. Ali told Human Rights Watch what happened in court in 2005:
Ali said he believed his brother Muhammad was able to have the judge charge him with breaking into his own home and imprisoned because the brother and the judge were on good terms.
In another case, 57-year-old Sulaiman, a Palestinian Syrian who had worked in Saudi Arabia for 22 years, returned from a vacation in Syria after learning that his sponsor had filed a complaint against him. Upon his return, police from al-Ulaya quarter in Riyadh immediately arrested him, keeping him for 30 days in their police station before transferring him to al-Hair Correctional Facility in November 2005. Sulaiman told Human Rights Watch that only 10 days after his arrest did he learn that his sponsor and employer accused him of stealing cigarettes. Sulaiman continued to describe what happened during the trial, which started in March 2006:
After going on hunger strike in May 2007, Sulaiman was able to prompt a response from the authorities. A new judge took over and promptly dismissed the case. But Sulaiman will be free to leave prison only when he finds a new sponsor. When we met him he had already been detained for almost two years.
Saba Habachy wrote in a 1962 article about the status of property and contracts in Islamic law,
Consequently, a common experience of detention following a private claim is imprisonment for debt.224 Saudi law specifically allows for the imprisonment of a debtor. The law on claiming personal rights provides that if a debtor fails to fulfill his or her obligations he shall be imprisoned, unless the creditor accepts to [grant him] respite, or [to] release him.225 Article 230 of the Law on Procedure before Sharia Courts (2000) affirms the possibility of detention for debt: If the convicted [party] refuses to execute the judgment issued against him for a reason other than insolvency, and if it has proved impossible to execute [it] on his properties, then the party in whose favor the judgment [was issued] may request the detention of the convicted [party] by force of a petition which he raises to the competent administrative ruler. The ruler can order such detention up to 10 days, after which the case reverts to the courts to decide whether to continue his detention.226
The law makes an exception for proven insolvency, in which case it shall be obligatory to release [the debtor] and abstain from his prosecution, unless the incurred debt is the result of crimes he has intentionally committed.227 The civil procedure code reaffirms that where a sentenced party refused to execute a judgment by reason of insolvency, [he] shall be referred to the court that had issued the judgment for the determination of whether or not he is insolvent.228 A contributor to a website discussing Saudi and other Arab laws clarified that for a judge to recognize insolvency, one of the concerned parties has to submit a motion to court, which will then determine whether conditions for insolvency are met. Debts may be reinstated, and recognition of insolvency lifted, at any future time (see Appendix).229
These articles make clear that there is no provision for indefinite detention of a debtor who is unable to pay his debts. Yet detention can become open-ended after the adjudication of the claim if the debtor is unable to settle the claim. Hamad Jarba, the deputy chief prosecutor of Saudi Arabia responsible for prison supervision, told Human Rights Watch that sometimes prisoners remain in prison after serving their sentences because they have not yet paid their private debt, which was the source of the sentence in the first place.230 Such imprisonment amounts to arbitrary detention, is akin to debt bondage, and is not permitted under international law.
In one case we discovered, a prisoner had received a sentence for causing a traffic accident, but remained imprisoned beyond the expiration of the sentence due to his inability to pay the damages the court awarded the injured party. At the time Human Rights Watch spoke to him, this person had spent four months beyond the end of his six-month prison term.231 Imprisonment for debt also applies to debt incurred as result of court-awarded fines. Ibrahim told Human Rights Watch that, after being jailed following a private claim against him, he remained imprisoned after the court decided to fine him $135,000 for working for a person who is not his sponsor.232 He has remained in prison for 11 years because he is unable to pay that amount.233
Journalist Ahmad al-Jumaia reported the case of a person who in February 2006 had remained imprisoned for five months for owing US$32,400, despite having obtained a certificate of insolvency. The newspaper reported that this person remained in detention even after his creditor had received the amount of money they privately agreed on.234
Human Rights Watch has received several complaints since December 2006 from personsall foreign nationalswho said that Saudi authorities had imprisoned them on the basis of claims by their employers that they had misappropriated company monies. Human Rights Watchs report in 2004, Bad Dreams: Exploitation and Abuse of Migrant Workers in Saudi Arabia, documented how employers use threats of imprisonment to withhold wages.235 One prisoner told Human Rights Watch in March 2007 that he had been in jail for nine years because he was unable to pay the equivalent of US$350,000 the court stipulated as his share of $1.08 million worth of construction materials his Saudi employer alleged that he and three others had stolen from him.236
Until his deportation on February 21, 2007, Ravi, an Indian national, had spent six years in prison in Jeddah. His sponsor and employer had him arrested in August 2001 for allegedly embezzling money from the hydrolic heavy equipment spare parts store where he worked as supervisor, after Ravi refused to sign fraudulent accounts. The appeals court appointed a different judge after the first verdict in favor of the sponsor, and Ravi counter-sued his employer for back wages from the time of his arrest. The second court appointed accountants who calculated that, in fact, the sponsor owed Ravi $60,600, but the judge reduced the amount to $14,270. Ravi appealed the verdict, insisting on the larger amount, but remained in detention throughout due to his employers initial suit for embezzling money. The authorities summarily deported Ravi before the final hearing, due to take place on March 12, 2007.237
Ameer, another Indian national, when we met him had been in prison since his arrest on October 18, 1999. Judge Abd al-Latif al-Abd al-Latif found him guilty of embezzling $105,300 from his sponsor Mahmud, at whose Uthman Company for Travel and Tourism he worked, and sentenced him to one year in prison. After serving almost eight years in prison on a one-year sentence, Ameer remained in jail. He had no resources to pay and did not know what means he could employ to obtain his release.238 An Indian consular official told Human Rights Watch that the consulate had forwarded letters to the court on behalf of Ameer with official affidavits following an investigation in India that confirmed that he was insolvent. The Indian official said the consulate had not received any reply.239
147 United Nations Human Rights Committee, International Covenant on Civil and Political Rights (ICCPR). Charges must include, as the UN Human Rights Committee laid out in its interpretation of article 9 of the ICCPR, an indication of the substance of the complaint, Communication No. 1177/2003 : Democratic Republic of the Congo. 16/05/2006. CCPR/C/86/D/1177/2003. (Jurisprudence), May 16, 2006, http://www.unhchr.ch/tbs/doc.nsf/0/52e2604680ee8878c125719500499a76?Opendocument (accessed on March 20, 2007).
148 UN Working Group on Arbitrary Detention, Individual Complaints, Urgent Appeals, Deliberations, http://www.ohchr.org/english/issues/detention/complaints.htm (accessed February 27, 2007). The complete definition of arbitrary detention includes detention for exercising human rights and detention following grossly unfair trials.
149 Communication No 305/1988: Netherlands. CCPR/C/39/D/305/1988 (Jurisprudence), Views Of The Human Rights Committee Under Article 5, Paragraph 4, Of The Optional Protocol To The International Covenant On Civil And Political Rights -Thirty-ninth Session concerning Communication No. 305/1988, August 15, 1990.
150 UN Working Group on Arbitrary Detention, Decision No. 4/1993 (Philippines), E/CN.4/1994/27, December 17, 1993.
151 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd Edition (N.P. Engel, 2005), pp. 255-258. This provision does not apply to criminal offenses related to debts such as fraud and failure to pay maintenance.
152 Islamic scholars might add categories of acts of moral opprobrium that generally do not require legal sanction. Of the five types of actions, only omission of acts in the first and commission of acts in the last category require legal sanction. The categories are: Compulsory (Wajib), Order without obligation (Mustahab), Legal and allowed (Halal), Disliked but not forbidden (Makruh), Forbidden (Muharram).
153 Human Rights Watch interview with Samih, Riyadh, December 7, 2006.
154 Human Rights Watch interview with Badi, Najran, December 14, 2006.
155 Human Rights Watch interview with Ghalib, December 8, 2006.
156 Kingdom of Saudi Arabia, Bureau of Investigation and Public Prosecution, Public Charge Sheet [against Abdullah al-Hamid, Ali al-Dumaini, and Matrook al-Faleh], undated.
157 Human Rights Watch communications with Matrook al-Faleh, July 19, 20 and 24, 2007.
158 Letter from Khalid Omair, one of the observers, to Human Rights Watch, September 8, 2007.
159 Andrew England, Saudis Sentence Political Activist to Prison, Financial Times, November 9 2007, http://www.ft.com/cms/s/0/9a1e072c-8e52-11dc-8591-0000779fd2ac.html (accessed December 11, 2007).
160 Human Rights Watch telephone interview with Salah, Riyadh, May 18, 2007.
161 Ibid., and email and telephone communication from an associate of Salahs in Riyadh, April 1, 2007.
162 Jamil, Written Submission to the First Administrative Chamber [daira] of the Board of Grievances Riyadh Branch, Clarification of the Harm that Resulted from my Arrest and Detention Without Legal Ground, September 21, 2006, copy on file with Human Rights Watch.
164 The director of the mabahith did not respond to three faxes from the president of the Board of Grievances (on September 20, October 16, and November 16, 2006) requesting a representative of the mabahith appear in court. Letters from the President of Board of Grievances to the Director of the Mabahith, dated September 11, October 4, and October 30, 2006, copies on file with Human Rights Watch.
165 Nahid Andijani, The Commission for the Promotion of Virtue Arrests 400 Thousand Persons Within One Year, Al-Sharq al-Awsat (London), December 3, 2006, http://www.asharqalawsat.com/details.asp?section=43&article=394901&issue=10232 (accessed August 7, 2007).
166 US-Saudi agreement, Confirmation of Policies, unpublished document, July 2006.
167 US Department of State, U.S.-Saudi Discussions on Religious Practice and Tolerance, July 2006.
168 Human Rights Watch interview with,Shaikh al-Ghaith, president of the Commission to Promote Virtue and Prevent Vice Riyadh, December 3, 2006.
169 Law of the Commission for the Promotion of Virtue and the Prevention of Vice, Umm al-Qura Newspaper, issue 2853, January 22, 1981, art. 9.
170 Executive Regulations, The Law of the Commission for the Promotion of Virtue and the Prevention of Vice, Umm al-Qura Newspaper, issue 3203, March 18, 1988, art. 14.
171 Human Rights Watch interview with Shaikh al-Ghaith, December 3, 2006.
173 Saudi Arabia: Hold Religious Police Accountable for Killing. Man Beaten to Death in Custody, Human Rights Watch news release, July 25, 2007, http://hrw.org/english/docs/2007/07/25/saudia16476.htm.
174 General Court of Riyadh, Verdict (Request for Retaliation or Other [Sentence]) No. 5/300/6, Riyadh, November 28, 2007.
175 Law of the Commission for the Promotion of Virtue and the Prevention of Vice, art. 4b.
176 Law of Interrogation Authority and Prosecution General, 1989, art. 3(f). Official translation.
177 Ibid., art. 3(f).
178 Imprisonment and Detention Law, Council of Ministers Resolution, No 441on, May 16, 1978, art. 21.
179 Human Rights Watch interview with Ahmad al-Salim, secretary-general (wakil) of the Ministry of Interior, Riyadh, November 29, 2006.
180 Law of the Bureau of Investigation and Public Prosecutions, art. 3(f).
181 Human Rights Watch interview with Zhafir Said al-Haqbani, warden of al-Hair Correctional Facility, al-Hair Correctional Facility, November 30, 2006.
182 Human Rights Watch interview with Ahmad al-Salim, November 29, 2006.
183 Human Rights Watch email correspondence with a person with first-hand knowledge of the case, January 25, 2007, and Human Rights Watch telephone interview with a former cellmate, May 29, 2007.
184 Human Rights Watch interview with a detainee in al-Hair Correctional Facility, November 30, 2006.
185 Human Rights Watch interview with a group of detainees in al-Hair Correctional Facility, November 30, 2006.
186 The Islamic calendar is 11 days shorter per year than the Gregorian calendar used in this report.
187 Human Rights Watch interview with Nizar, November 30, 2006.
188 Human Rights Watch interview with Umar, al-Hair Correctional Facility, November 30, 2006.
189 Human Rights Watch interview with Rashid, al-Hair Prison Wing 18, November 30, 2006, and by telephone, January 21, 2007.
190 Human Rights Watch interview with Yahya, Riyadh, December 2, 2006.
191 Law of Criminal Procedure (LCP), art. 217.
192 Human Rights Watch interview with Ali al-Harithi, general director of prisons, Riyadh, December 2, 2006.
193 Imprisonment and Detention Law.
194 Human Rights Watch interview with Ali al-Harithi, December 2, 2006.
195 Human Rights Watch interview with Asim, al-Hair Correctional Facility, November 30, 2006.
196 Human Rights Watch interview with Adil, al-Hair Correctional Facility, November 30, 2006.
197 Human Rights Watch interview with Hussein al-Sharif, Jeddah branch manager, National Society for Human Rights, Jeddah, December 9, 2006.
198 Human Rights Watch interview with Nuri, a prisoner in al-Hair Correctional Facility, November 30, 2006.
199 UN Human Rights Committee, Communication No. 560/1993, A. v. Australia (Views adopted on 3 April 1997), in UN doc. GAOR, A/52/40 (vol. II), p. 143, paras. 9.3 and 9.4.
200 Human Rights Watch interview with Mansur, a prisoner in al-Hair Correctional Facility, November 30, 2006.
201 Human Rights Watch interview with Hamdi, a detainee in al-Hair Correctional Facility, November 30, 2006.
202 Human Rights Watch interview with Anwar, November 30, 2006.
203 Law of Criminal Procedure, arts. 103, 104, and 107. According to Article 112 of the LCP, the minister of interior determines which crimes require pretrial detention: The Minister of Interior shall, upon a recommendation by the Director of the Bureau of Investigation and Prosecution, specify what may be treated as a major crime requiring detention.
204 Law of Criminal Procedure, art. 117.
205 Human Rights Watch telephone interviews with Bassim Alim, lawyer, Jeddah, February 7, 2007; Muhammad Said Tayib, Jeddah, February 6, 2007; Sulaiman al-Khuraiji, February 26, 2007; and Nawaf Obaid, Riyadh, February 23, 2007.
206 Samir Al-Saadi, 10 Held for Funding Terrorism, Arab News, February 4, 2007, http://www.arabnews.com/?page=1§ion=0&article=91749&d=4&m=2&y=2007 (accessed July 26, 2007).
207 Detained Saudis were mulling a political party, Reuters, April 3, 2007.
208 Human Rights Watch interviews with three prisoners Hasan, Najib, Talib , November 30, 2006.
209 Human Rights Watch interview with a detainee (name withheld), al-Hair Correctional Facility, November 30, 2006.
210 Human Rights Watch interview with Husain, al-Hair Correctional Facility, November 30, 2006.
211 Law of the Commission for the Promotion of Virtue and the Prevention of Vice, art. 11.
212 Executive Regulations, Law of the Commission for the Promotion of Virtue and the Prevention of Vice, art. 9.
213 Article 26 of the LCP also endows the CPVPV with law enforcement powers.
214 Ahmadis in Saudi Arabia are a small community of foreign workers primarily from India and Pakistan, who consider themselves Muslims and follow the teachings of Mirza Ghulam Ahmad, a 19th-century Muslim reformer. They also face official persecution in Pakistan and Bangladesh.
215 Executive Regulations, Law of the Commission for the Promotion of Virtue and the Prevention of Vice, art. 10.
216 Letter from James Oberwetter, US Ambassador to Saudi Arabia, to Christopher J. Dodd, US Senator, March 14, 2007, quoting Saudi official statements made on February 28, 2007.
217 Human Rights Watch interview with Khalid, December 11, 2006.
218 Human Rights Watch interview with the father of the girl, Riyadh, December 21, 2006.
219 Law of Criminal Procedure, art. 18.
220 Ibid., art. 68.
221 Human Rights Watch interview with Ali, Riyadh, December 19, 2006.
222 Human Rights Watch telephone interview with Sulaiman, al-Hair Correctional Facility, May 29, 2007.
223 Saba Habachy, Property, Right, and Contract in Muslim Law, Columbia Law Review, vol. 62, No. 3 (March 1962), pp. 450-473.
224 The UK government writes in its advisory to visitors to Saudi Arabia that Under sharia law, non-payment of debt is considered a crime, and sufficient reason for imprisonment; imprisonment does not discharge the debt Experience shows that debt cases are often the most difficult to resolve. United Kingdom Foreign and Commonwealth Office, Living in Saudi Arabia, www.fco.gov.uk/Files/kfile/LIVING%20IN%20SAUDI%20ARABIA,0.doc (accessed April 12, 2007).
225 Organizational Regulation of Procedures For Claiming Personal Rights, Umm al-Qura Newspaper, issue 3082, September 17, 1985, art. 8(a).
226 Law on Procedure Before Sharia Courts, art. 231.
227 Organizational Regulation of Procedures for Claiming Personal Rights, art. 18.
228 Law of Procedure Before Sharia Courts, art. 231.
229 Center for Arab Laws, Insolvency, Recognition of Insolvency, http://www.arblaws.com/board/showthread.php?=1266&highlight=%E3%DA%D3%D1 (accessed March 8, 2007). A creditor with an enforceable verdict against his debtor may put a claim toward whatever present or future assets the debtor holds with any third party. A creditor may also ask the court to place his debtors moveable assets under protective custody if the debtor has no fixed residence. Law of Procedure Before Sharia Courts, art. 208.
230 Human Rights Watch interview with Hamad al-Jarba, prosecutor, Riyadh, November 29, 2006.
231 Human Rights Watch interview with Muzaffar, a Pakistani detainee, al-Hair Correctional Facility, November 30, 2006.
232 Human Rights Watch telephone interview with Ibrahim, Jeddah, August 8, 2007.
233 Human Rights Watch received no reply to inquiries about the provisions and practices in Saudi law regarding imprisonment for debt incurred in connection with court-awarded damages resulting from a criminal act or with court-imposed fines, and which the debtor is unable to pay. We made inquiries about conditions for imprisoning a debtor to a professor of law at the Imam Muhammad Islamic Universitys High Judicial Institute, which trains judges (March 2), to the National Society for Human Rights (March 14), and to the Ministry of Justice (April 10, 2007).
234 Al-Jumaia, Detained Behind Bars, al-Riyadh.
235 Human Rights Watch, Bad Dreams: Exploitation and Abuse of Migrant Workers in Saudi Arabia, vol. 16, no. 5(E), July 2004, http://hrw.org/reports/2004/saudi0704, p. 40.
236 Human Rights Watch telephone interview with Yunis, March 14, 2007. Yunis denied that he had stolen any materials.
237 Human Rights Watch telephone interviews with Ravi, Jeddah, January 25, and email communication on February 24, 2006.
238 Human Rights Watch telephone interviews with Ameer, Riyadh, May 29 and July 6, 2007.
239 Human Rights Watch telephone interview with Indian consular official, Riyadh, July 9, 2007.