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V. Other Legal Gaps

There are significant gaps between the statutory laws that the government has passed and international human rights law. Saudi law contains a number of legal safeguards which should protect an individual if he or she is arrested and detained. An arrested person has the right to inform anyone of his or her choice of his or her arrest; an arrested person has the right to have a lawyer or personal representative present during any investigation; and the prosecutor must inform the arrested person of the charges. But there are deficiencies in the way some of these safeguards are formulated, and Saudi law also contains glaring omissions in human rights protections, including a lack of the rights to inform others of one’s arrest, of access to a lawyer, of the right to be promptly charged and speedily tried, to have the means to prepare a defense, and to challenge the lawfulness of one’s detention.

Right to Inform Others of One’s Arrest

Rule 92 of the UN Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules) provides that

An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.⁴²

Foreign detainees “shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.”⁴³

Rule 35 of the Standard Minimum Rules provides that

(1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution. (2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him orally.⁴⁴

In 1988 the UN General Assembly adopted a Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), further strengthening international standards of detention. Principle 15 states that a detained person’s “communication … with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.”⁴⁵ The detainee has a right to notify, or have the authorities notify, “members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody.”⁴⁶

Article 35 of the Law of Criminal Procedure provides that anyone arrested or detained “shall be entitled to communicate with any person of his choice to inform him of his arrest,”⁴⁷ but fails to set a timeframe, specifying only that such communication should occur promptly after arrest or after the transfer between holding facilities. Shaikh Muhammad Al Abdullah, the head of the Bureau of Investigation and Public Prosecutions, informed Human Rights Watch that “a detainee has the right to make a phone call to anyone.”⁴⁸

Saudi law is more restrictive than Al Abdullah’s statement suggests. Of particular concern is a provision that gives prosecutors the right to keep suspects in incommunicado detention for up to 60 days. Article 119 of the LCP states, “In all cases, the investigator shall be entitled to stop the accused from communicating with any other accused or detainee, and to stop any visit to such accused for a period not exceeding sixty days whenever that is deemed necessary, without prejudice to the right of the accused to communicate with his representative or attorney.”⁴⁹ Article 119 does not define “communicate,” and leaves open the possibility that prosecutors may restrict a detainee’s contact with his or her lawyer to written or telephone communication (see Appendix). Following his visit to Saudi Arabia in 2002, the UN special rapporteur on the independence of judges and lawyers touched upon incommunicado detention in his report. “Experience has shown in other countries that prolonged detention, particularly where it is incommunicado, provides the conditions for the violation of a detained individual’s rights,” he wrote. “Even with access to a lawyer, other individuals, particularly family or consular officials, are an important safeguard for the well-being and the rights of the accused.”⁵⁰

When the mabahith arrested 10 persons in Jeddah and Medina in February 2007 (see chapter VI, section “Arrests Without Warrants”), officials did not permit them to inform their relatives or lawyers of their whereabouts or the reasons for their arrest, with the exception of one detainee, Aiman, who had contact with his wife during a brief period when he was hospitalized.⁵¹ Five of those arrested had been meeting at Basrawi ‘s villa just north of Jeddah.

Basrawi’s family learned of the events only because the mabahith let the driver and two domestic servants working for Basrawi go after the arrest. Fadhil’s wife, Laila, told Human Rights Watch that she had expected her husband back around midnight. When he didn’t come, she called the traffic police and the hospitals, but they did not have a record of her husband. She then called the mabahith, who told her they had no record of arresting Fadhil, but would follow up.⁵² Over the following days, she was unable to locate her husband. Laila told Human Rights Watch that the mabahith told her, “We are not holding him.”⁵³ The relatives of others were able to confirm that the mabahith was holding them at the new Ruhaili / ‘Isfan facility northeast of Jeddah, by going to the prison.

On February 23, 2007, a Saudi security consultant confirmed to Human Rights Watch that Fadhil was being held there and that visits for the family were now allowed. On February 26, however, Rafiq, the son of one of those detained, Kamil, said that his family had not been able to visit Kamil at the facility and that none of the detainees, after three weeks in detention, had been able to communicate with the outside world.⁵⁴ In July 2007 a relative of one of the detained men told Human Rights Watch that family visits had started one month earlier.⁵⁵

Some detainees in al-Ha’ir Correctional Facility told Human Rights Watch that they have five or 10 minutes, once or twice a week, to make calls. However, none was able to contact friends or family at the time of their arrest.

Time is of the essence especially for foreign detainees, who need to call their embassies to intervene before they can be deported, a process that is supposed to take not more than three days.⁵⁶ Denying a detainee contact with the outside world and holding him or her incommunicado may also facilitate torture and ill-treatment. As Nigel Rodley, then-UN special rapporteur on torture, wrote in 1999:

Based upon information received over the course of the past seven years, the Special Rapporteur is of the view that incommunicado detention is the most important determining factor as to whether an individual is at risk of torture. As such, the Special Rapporteur reiterates the recommendation of his predecessor and urges all States to declare incommunicado detention illegal.⁵⁷

The consequences of not being able to contact the outside world can quickly bring on despair. Rami, a 38-year-old Palestinian who was born in Saudi Arabia and lived all his life there, despondently told Human Rights Watch that the passports department in Jeddah arrested him as he tried to routinely renew his residency permit in February 2007 because he had been working for an employer who was not at the same time his sponsor. Rami told Human Rights Watch that the passport official

arrested me, searched me, taking all possessions, including my mobile phone, and brought me to the deportation center. I have been here 23 days now. Everything is forbidden here. No visits, no telephone calls—there are no public telephones, you cannot get outsiders to bring you food or clothes. We share a smuggled mobile phone among four or five people here. There are frequent searches and it is forbidden. I managed to call my brother and three or four days ago my brother came to the deportation center and tried to bring me clothes, but he was not allowed to see me or give me clothes.⁵⁸

Contact with the outside world, a fundamental right of detainees, is also necessary to obtain legal counsel and prepare a defense. Four Sri Lankans arrested in March 2004 for armed robbery were unable to inform their embassy until after their trial had begun, almost one year later.⁵⁹ They were taken from their cells to be executed without notice and had no opportunity to inform their embassy. A spokesperson for the embassy said, “We are shocked, we never expected any of this,” and added, “We made an appeal asking for clemency.”⁶⁰

Right of Access to a Lawyer

Saudi Arabia has only recently begun to give serious consideration to the role of defense lawyers. The 2001 Code of Law Practice sets forth rights and duties of the legal profession. 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. Abd al-Rahman al-Lahim, one of the few lawyers to take up such work at all, has represented clients in a number of high-profile cases, including a couple subjected to a judicially sanctioned forced divorce,⁶¹ the rape victim who was sentenced to 90 lashes for “improper mingling with the other sex,” and a young journalist arrested for “harboring destructive thoughts.”

Articles 10 and 11 of the Universal Declaration of Human Rights set out the core concepts of the right to a fair trial and Article 14 of the International Covenant on Civil and Political Rights, to which Saudi Arabia has said it will soon accede,⁶² specifically provides for the right of a defendant

to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.⁶³

The Arab Charter on Human Rights, which the Arab League re-drafted and approved in 2004 (Saudi Arabia acceded the same year), and which entered into force in 2007, closely mirrors the due process provisions of the ICCPR.⁶⁴

Principle 13 of the UN Body of Principles states that “at the moment of arrest … or promptly thereafter,” the authorities must inform the detained person of “his rights and how to avail himself of such rights.” Rule 93 of the Standard Minimum Rules provides that “an untried prisoner shall be allowed to apply for free legal aid where such aid is available,” and to obtain “writing material” and to be able to communicate confidentially in writing and in person with a legal adviser.⁶⁵ Principle 17 of the Body of Principles underlines that detainees are “entitled to have the assistance of a legal counsel,” free of charge “if he does not have sufficient means to pay.” A detainee shall be “informed of his right … and shall be provided with reasonable facilities for exercising it.” ⁶⁶

Saudi law omits two important aspects of the right to legal counsel. First, it contains no provision for the right to be informed of the protections guaranteed under the law. Second, it does not protect the right to have legal counsel provided free of charge to those who cannot afford to hire one. Article 223 of the LCP foresees the publication of “implementing regulations” to the law, but nearly five year after its passage, none has been published.⁶⁷

A third shortcoming of Saudi law is its ambiguity over when a detainee may have access to legal counsel. Article 1 of the UN-agreed Basic Principles on the Role of Lawyers recommends that access to lawyers and legal services be available “in all stages of criminal proceedings.”⁶⁸

The LCP refers to the right to legal counsel in a number of articles. At the outset, article 4 states, “Any accused [or charged] person shall have the right to seek the assistance of a lawyer or a representative to defend him during the investigation and trial stages.”⁶⁹ Article 70 specifies that under no circumstances may the investigator remove legal counsel, once the defendant has hired one.⁷⁰

Articles 35 and 116 give the arrested person the right to communicate with any person of his or her choosing, but the LCP fails to provide for the right to legal counsel from the moment of arrest, while stipulating that a first interrogation may take place within 24 hours, possibly before the right to legal counsel can be invoked.⁷¹ Head of the Bureau for Investigation and Public Prosecutions Shaikh Al Abdullah told 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.”⁷² While human rights law does not provide an absolute right that a lawyer be present during questioning, the right of access to a lawyer does mean that the detainee should have some opportunity to seek advice from a lawyer either before or during questioning. Otherwise potential breaches of other rights such as the right against self-incrimination may occur.

Finally, Article 70 raises questions as to what legal advice, if any, the lawyer may give a client during an ongoing interrogation, and seems to impinge on the right of confidentiality between lawyer and client:

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.⁷³

Knowing of the right to a lawyer

Saudi law does not oblige the authorities to inform a detainee of the right to legal counsel, rendering its exercise contingent upon the detainee already knowing of this right and requesting a lawyer. Most persons Human Rights Watch spoke to did not know they have a right to a lawyer, or that by law their lawyer could attend interrogation sessions. None of the over 60 inmates interviewed by Human Rights Watch said the authorities had informed him of the right to counsel. Ibrahim al-Juhaiman, the head of the prosecution service in charge of investigations and prosecutions, told Human Rights Watch that a suspect is “informed of [his or her] rights to appoint a lawyer or representative.” He explained further, “The law does not require the presence of a lawyer but the suspect has the choice to have one, and lawyers can attend interrogations.”⁷⁴ Shaikh Muhammad Al Abdullah, the head of the prosecution service, added that the suspect “is free to defend himself.”⁷⁵

A prisoner in al-Ha’ir prison contradicted these claims, telling Human Rights Watch,

I was arrested because I was in a fight and was stabbed and I also beat the [others], and when I went to complain [to the police] I was arrested. I didn’t ask for a lawyer. No one told me I had a right to a lawyer. I was held for three months and 20 days before I saw a judge.⁷⁶

In March 2004 the government arrested 12 prominent political reform advocates and later released nine. One of the three kept in detention and later tried and convicted, based on their public petitions for constitutional and political changes (see chapter III, above), told Human Rights Watch that a visitor gave them a copy of the Saudi Law of Criminal Procedure while they were detained in the mabahith’s ‘Ulaisha detention center in Riyadh. They learned of their right to a lawyer and to be tried within six months of their detention only upon reading the document, and promptly demanded these rights.⁷⁷ The detainees were able to appoint a legal defense team, but the government, in turn, arrested Abd al-Rahman al-Lahim, their chief defense lawyer, in November 2004, for having spoken to Al Jazeera television about his clients.

Most of the detainees Human Rights Watch spoke with in al-Ha’ir prison were under the age of 30, and several were foreigners who did not speak or read Arabic proficiently and had little if any knowledge of Sharia provisions of criminal law. Al-Ha’ir Correctional Facility Director Zhafir al-Haqbani told Human Rights Watch that there were no translators at the prison. He said that, unlike at interrogations or trials, they were not vital in the prison, and that fellow foreign prisoners with good Arabic translated when the need arose.⁷⁸

One of four arrested Sri Lankans later executed told Human Rights Watch that he did not know of his right to have a lawyer. His embassy, with which he was initially denied contact (see above), told him after his trial had begun that it was too late to hire a lawyer.⁷⁹ Eight non-Saudi inmates at al-Ha’ir’s Exemplary Wing 18 holding detainees of good behavior told Human Rights Watch in November 2006 that officials had informed none of them of their right to inform their relatives of their whereabouts or to appoint a lawyer.⁸⁰ Two inmates said that they had asked for lawyers. In one case, officials refused his request; only one was able to obtain legal counsel in preparation for his trial.⁸¹

Obligation to Charge Promptly

International law obliges states to formally charge defendants with the offense that they are alleged to have committed. We have not listed accounts of persons whom Saudi law enforcement officers did not promptly charge with an offense, because this report cites numerous examples of the failure to charge defendants throughout. We have limited ourselves to a discussion of the shortcomings of Saudi law.

Article 9.2 of the ICCPR and Principle 10 of the Body of Principles identically provide that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”⁸² Charges must include, as the UN Human Rights Committee (the body of experts that reviews states’ compliance with the ICCPR) laid out in its interpretation of article 9 of the ICCPR, an “indication of the substance of the complaint.”⁸³

Saudi law echoes international law, at least on some procedural requirements. Article 116 of the Law of Criminal Procedure gives the arrested person the right to “be promptly notified of the reasons for his arrest or detention” and the investigator (in Saudi Arabia, this is also the prosecutor) must inform the detainee of the charges “when the accused appears for the first time for an investigation,” which has to be within 48 hours (Article 34). ⁸⁴

As noted above, Saudi Arabia has not codified its criminal offenses, nor is there any clarity in the case law, with the result that the criminal law in this respect is neither accessible nor reasonably foreseeable. This deficiency in Saudi criminal law hinders the ability of law enforcement officials to inform detainees of the substance of the complaint. The head of the prosecution department, Ibrahim Juhaiman, told Human Rights Watch, “You will never find out the exact crime until the end of the investigation. Then you can determine the crime. No charges are filed until after the investigation.”⁸⁵ Nevertheless, international standards require the authorities to file substantive formal charges promptly, and to inform the defendant of them.

Saudi law does not specify whether the process of charging a suspect involves a formal, written procedure in which the elements of the crime are specified, and whether the accused should be informed of the evidentiary standard used to establish that the accused person has in fact committed the crime(s) in question (see Appendix).⁸⁶

The absence of a penal code or similar set of laws making clear what are and what are not criminal offenses renders arrests and prosecutions inherently arbitrary as the lack of legal specificity means that whether particular behavior constitutes an offense is essentially a subjective assessment. This vagueness leaves the door open for prosecutors to fit the crime to the act, as opposed to their obligation to prove the defendant has committed clearly defined elements of a specific crime.

Under Saudi law, the court can alter, or permit the prosecutor to alter, the charge. Article 159 of the Law of Criminal Procedure states, “The court shall not be bound by the description included in the memorandum of the charges. It shall give the act the proper description even though the description is not compatible with the memorandum of the charges, and shall advise the accused accordingly.”⁸⁷ Article 160 states, “The court may, at any time, permit the Prosecutor to amend the memorandum of the charges at any time. The accused shall be notified of such amendment and be granted sufficient opportunity to prepare his defense with respect to such amendment, according to law.”⁸⁸

Furthermore, the basis for charging a suspect with a crime in a formal legal procedure may well differ from the reasons law enforcement officials cited to justify arresting a suspect initially. The legal standard of proof required for carrying out an arrest is generally lower than that required for charging a person with a crime. In flagrante arrests rely on the judgments of law enforcement officers who most likely do not have advanced legal training.⁸⁹ The circumstances justifying arrest may vary from case to case, but must be reasonable and communicated to the detainee. Charging a suspect, or arresting a suspect pursuant to a prosecutor’s arrest warrant, on the other hand, requires a legal analysis matching the available facts to the provisions of the law. This difference is the chief reason why the period the law in most countries grants law enforcement officers before having to produce a suspect for formal charges is short, commonly only 24 hours, and, in Saudi Arabia, between 24 and 48 hours.

Obligation to Bring to Trial without Undue Delay

Fair trial standards require that defendants receive a speedy trial.⁹⁰ The prosecution must not unduly delay bringing a case to trial, and the court must not unduly delay adjudicating a case on its merits.⁹¹ Excessive delays in adjudicating a detainee’s case in court can render his or her continued detention unjustified and therefore arbitrary. Saudi law sets an absolute limit of six months on pretrial detention before a detainee’s case must reach the courts, but does not provide legal guidance on what may constitute unreasonable delay either during those six months or once a trial has begun. ⁹² Saudi law does not give detainees the right to challenge the lawfulness of their detention before a court and obliges prosecutors to meet only administrative, but not substantive or evidentiary, requirements for issuing orders for the continued detention of suspects for periods of up to six months. Rather than protect the right of suspects to seek relief from a judicial authority, Saudi Arabia effectively places their detention at the discretion of the prosecution service.

Lawyer ’Azzam told Human Rights Watch, “If the accused asks for a postponement, the next [court] session must be within 45 days. This is not a matter of law, but a common practice.”⁹³ Tawfiq, a Yemeni man in Buraiman prison, however, told Human Rights Watch that he had not been summoned for a second hearing in his case for over one year. The first hearing consisted only of reading out the charges and notarizing statements he made in police interrogations.⁹⁴ In another case, Nasir described to Human Rights Watch the trial of his younger brother ‘Amr:

The first session of the trial, the hearing of and response to the charges [sama’], took place eight months after ’Amr’s arrest. We had been pressing the court for months to proceed with the case, but didn’t know when it would finally happen.⁹⁵ After the first session, the judge refused to schedule the next session. He even expelled us, ’Amr’s relatives, from the courtroom after we said that this was against the laws of the judiciary and demanded that he fix a time for the next hearing.⁹⁶

Prisoners who remain arbitrarily detained without trial beyond the six-month limit specified by law are unable to challenge their continued detention. The National Society for Human Rights began prison inspections in 2004. Al-Riyadh newspaper quoted the society as saying that detainees remained in prison “for long periods without being brought to trial” and that it considered this to be “an infraction of the law.”⁹⁷ Fifteen months later, another Saudi daily, Arab News, wrote that the National Society for Human Rights had informed the Ministry of Interior about “complaints it received from some prisoners or their families about delays in hearings, being imprisoned longer than the terms of their sentences, being forced to register false confessions or being detained under tenuous suspicions.” This report prompted the head of the Saudi prison service, Maj. Gen. Ali al-Harithi, to promise that no prisoner would be held for more than six months without trial.⁹⁸

On February 22, 2006, al-Riyadh, which many Saudis regard as representing government views, published an article about excessive delays in bringing suspects to trial and bringing trials to conclusion. It cited detained Saudi citizen M.F.D. as saying that it took prosecutors two years to bring his case to trial. According to the article, Sudanese citizen N.M.A., detained in Jeddah’s Buraiman prison, had been waiting for one year for a court to try his case; Yemeni citizen D.J.N., detained in Riyadh’s Malaz prison, had spent seven months waiting for his trial.⁹⁹

One year later, we found this state of affairs continuing. Ebot, a Cameroonian, had remained in detention since January 2006 without trial when we spoke to him in February 2007.¹⁰⁰ Nasim told Human Rights Watch that he spent between one and two months in the police station for interrogation, and that his case did not go to trial until nine months after his arrest on April 25, 2005; he does not recall being formally charged.¹⁰¹ During Human Rights Watch’s visit to al-Ha’ir Correctional Facility, other detainees told Human Rights Watch that they had spent more than six months behind bars before seeing a judge and commencing trial. One man said he saw a judge after eight months, another said he had waited a year and five months before seeing a judge, and a third said that he had been in prison a year-and-a-half without being sentenced.¹⁰²

A Jeddah lawyer told Human Rights Watch that an order by the Ministry of Justice specifies that a court has to set an initial hearing two weeks after the prosecutor sends a case to court.¹⁰³ The head of the Partial Court in Jeddah, Judge Abdullah Abd al-Rahman al-‘Uthaim, refused Human Rights Watch access to his court, insisting that “you cannot attend court sessions.”¹⁰⁴ Human Rights Watch could not determine whether responsibility for the failure to hear cases in a timely manner rests with the prosecution service, the courts, or both.

Samir, from Najran, told Human Rights Watch that he had been in prison for four years without a trial and has not been able to secure judicial review of his case.¹⁰⁵ Lawyer ’Azzam told Human Rights Watch that most prosecutors, while not Sharia scholars, are trained in statutory law. The head of the prosecution service, Shaikh Al Abdullah, also told Human Rights Watch that “the members of our prosecutions and investigations department are university graduates and many have doctorates. We place great emphasis on training and on professional quality of our members.”¹⁰⁶ The February 2006 article in al-Riyadh, however, indicates that delays in bringing suspects to trial are primarily due to “the investigation and prosecutions department and its incomplete staff and administrative organization.”¹⁰⁷

Right to Adequate Time and Facilities to Prepare One’s Defense

Among the criteria necessary to ensure a fair trial is the right to have adequate time and facilities to prepare one’s defense. Article 14.3.b of the ICCPR guarantees this right and article 16b of the Arab Charter for Human Rights endorses it as well.

Article 137 of the LCP provides a defendant broadly with “adequate time” before a scheduled hearing:

Litigants shall be summoned to appear before the competent court with adequate time prior to holding a hearing. An accused person who is arrested in “flagrante delecto” [sic] may be promptly brought before the court without prior scheduling. If the accused asks that the court to grant him a grace period in order to prepare his defense, the court must grant him sufficient time.¹⁰⁸

But the law does not address the circumstances or length of time under which a defendant may ask for a recess to examine new evidence during a hearing or ask for the postponement of a scheduled hearing. This deficiency is particularly troubling since, as already noted (see section “Obligation to Charge Promptly”), article 159 declares the court “not [to] be bound by the description in the memorandum of charges,” and under article 160, “The court may, at any time, permit the Prosecutor to amend the memorandum of the charges.” In both cases, the court must notify the accused, but only if the prosecutor amends charges under article 160 shall the defendant be “granted sufficient opportunity to prepare his defense with respect to such amendment.”¹⁰⁹ Article 194 of the LCP gives all parties to a lawsuit 30 days from the receipt of the verdict to appeal.¹¹⁰

Saudi law is silent on the provision of adequate facilities necessary to prepare a defense. Article 1 of the Basic Principles on the Role of Lawyers highlights a defendant’s right of “[a]ccess to lawyers and legal services.”¹¹¹ The LCP does not give the defendant the right to view his own file, including the minutes of interrogation, all evidence against him and the charge sheet. Without such information the defendant is left at a significant disadvantage.

Article 8 of the Basic Principles states, “All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality.”¹¹² As noted above, Saudi law provides for the right to legal counsel, though not for the right to be informed of the right to legal counsel or the right of indigent defendants to have legal counsel provided free of charge where the interests of justice so require.¹¹³

Article 70 of the LCP contains an important safeguard for defendants who have been able to retain legal counsel, in stating that “the Investigator shall not, during the investigation, separate the accused from his accompanying representative or attorney.”¹¹⁴ To prepare an effective defense, the relationship between the defendant and his lawyer must be confidential. But Saudi law only protects the confidentiality of written communication. Under Article 84 of the LCP, “The Investigator may not seize any piece of paper or document that has been delivered by the accused to his representative or attorney in connection with the performance of the service entrusted to him, nor the correspondence exchanged between them in the case.”¹¹⁵ Verbal communications are not protected. Article 116 grants the defendant the right to communicate with any person of his or her choice, provided it is “under the supervision of the criminal investigation officer.”¹¹⁶ Saudi law lacks provisions reflecting international human rights standards that allow for lawyer-client consultations to be “within sight, but not within the hearing, of law enforcement officials” (see Appendix).¹¹⁷

Although defendants often spend protracted time in detention beyond the periods permitted by law, in that time they do not have adequate means to prepare their defense.

Anwar told Human Rights Watch that his case took 14 court hearings before the judge issued his verdict. “I was told four days before the last [court] session, but I wasn’t given any warning before the previous sessions,” he said, adding, “I used the time to write a letter to the judge explaining my innocence,” after having sat through 13 sessions.¹¹⁸

The CPVPV arrested café owner Khalid in September 2006, but the police released him on bail the same night (for more on the arrest see chapter VI, section “Arrests Without Warrants”). Khalid went three times to the prosecutor’s office where, he said, the prosecutor only insulted him and told him the court would call him for a hearing, without giving him a case number or a copy of the charges against him.¹¹⁹ Three weeks later, a court officer called to give him a hearing date in a week’s time, but without indicating what he had been charged with.

Firas told Human Rights Watch about his ordeal of changing and multiplying charges. Firas said that after he surrendered to police and was arrested on June 10, 2003, the mabahith of Najran tortured him for one week, after which he signed a “confession” admitting to possessing an unlicensed weapon. Firas said it was his father’s 25mm pistol and that nobody had renewed the license in the five-years since his father had died and it expired. After he confessed

the interrogator continued to question me. Now the accusation was of smuggling 200 machine guns via a border demarcation company two years prior to my arrest. The whole interrogation and torture lasted two months. After one month of interrogation in solitary confinement, [my case] was put together with [that of] a friend, who had indeed smuggled 190 machine guns and 50 pistols. After that, they transferred me to the general prison. There was no prosecutor at the mabahith, but they suddenly took me to the prosecutor who accused me of two operations to smuggle two chunks of qat [a stimulating leaf, usually chewed] into Saudi Arabia, also two years ago. He had no witnesses, no evidence. Again without notice, they took me to court soon thereafter, where Najran Partial Court Judge Hamad al-Dusari sentenced me to 20 months in prison and 700 lashes on the drugs charges in a single session that lasted one hour. One month later, Najran Partial Court Judge al-‘Amiri sentenced me to one year and 10 months in prison for arms smuggling and concealment and 600 lashes. I could not call any witnesses or rebut the charges.¹²⁰

Ghalib told Human Rights Watch that he was participating in a demonstration in Jeddah in December 2004 and taking photos. He was arrested the same day, and spent two weeks in detention before being suddenly taken to court, where he learned that the judge charged him with going “beyond the limits of obedience to the ruler.”¹²¹ He told Human Rights Watch that he did not know how to respond to the charge, and simply stated, “I do not obey this ruler.” Ebot told Human Rights Watch that he first learned about his appearance at court when a prison official called out his name on the night before his trial began, one year after his arrest. After the judge had postponed the hearing because no interpreter attended and Ebot could not fully understand the prosecutor’s speech, Ebot asked the prison administration to be able to consult his file, but the official said “It’s too early. When you go to see the judge, you’ll see your file.”¹²² ’Imad told Human Rights Watch about his trial for arms dealing 10 years ago: “One night, I received a call saying tomorrow you have a court appointment.”¹²³

Right to Challenge Lawfulness of Arrest and Detention

Article 9 of the Universal Declaration of Human Rights provides that “No one shall be subjected to arbitrary arrest, detention or exile.” Article 11 guarantees that “Everyone charged with a criminal offense has the right to be presumed innocent until proved guilty according to law in a public trial.”¹²⁴ The ICCPR’s article 9 gives detainees the right “to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”¹²⁵

Principle 11.1 of the Body of Principles states, “A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law.” With respect to those detained under criminal charges, principle 37 states, in pertinent part,

A person detained on a criminal charge shall be brought before a judicial or other authority provided by law promptly after his arrest. Such authority shall decide without delay upon the lawfulness and necessity of detention. No person may be kept under detention pending investigation or trial except upon the written order of such an authority.¹²⁶

There may be circumstances warranting detention of an accused person before a judge pronounces on the guilt or innocence of the accused. However, an essential safeguard to ensure that the state does not arrest a person arbitrarily, and to protect the accused’s presumption of innocence, is the right to have access to a court in order to obtain a review of the grounds for arrest and decide whether the arrest and continued detention is lawful and necessary. Article 8 of the UDHR gives “Everyone […] the right to an effective remedy” for rights violations, and article 9.4. of the ICCPR guarantees a detainee the right to challenge the lawfulness of his or her detention in a court.¹²⁷

Article 112 of the Saudi Law of Criminal Procedure tasks the minister of interior to specify which crimes are major crimes requiring detention.¹²⁸ The Ministry of Interior specified 14 crimes as major crimes in decree no.1245 of September 30, 2002.¹²⁹ These major crimes include: murder; rape; kidnapping; drug and intoxicant abuse or dealing; theft involving forced entry, using implements or weapons, or carried out by forming a gang; fighting; firing (weapons) resulting in the grievous injury of persons; impersonating security officers; forgery; bribery; and embezzlement. (Abd al-Rahman al-Jar Allah, a member of the Bureau of Investigation and Public Prosecutions, pointed out that article 10 of the Regulation of the Sources of Detention and Temporary Confinement and Preventive Detention cites a much longer list of crimes requiring mandatory pretrial detention.¹³⁰ This regulation, which has no preamble setting out its objectives or relation to other laws, does not define the three types of detention its title invokes. Its provisions suggest that it seeks to regulate arrest procedures. The official Collection of Saudi laws of 2002 (1423) does not contain this regulation. The Ministry of Justice did not reply to Human Rights Watch’s inquiry regarding the status of this law.)

A prosecutor may order the detention of suspects for major crimes, presumably (although the law does not explicitly state this) to prevent the suspect from endangering the public. The prosecutor may also order the accused remanded in custody “if the interest of the investigation requires his detention to prevent his fleeing or affecting the proceedings of the investigation.”¹³¹

Thus Saudi prosecutors, part of the executive branch and in an adversary position vis-à-vis criminal suspects, also serve the role of judicial officers, making decisions on continuing detention for suspects. This quasi-judicial role for prosecutors is a serious violation of international legal standards and due process. The Guidelines on the Role of Prosecutors concerning criminal proceedings specifies, “The office of prosecutors shall be strictly separated from judicial functions” (Guideline 10).¹³² The Saudi law governing the office of the prosecutor specifies that its members “shall enjoy full independence,” “subject [only] to the provisions of Islamic Sharia and the observed Laws,” and that “no one shall interfere with their work.”¹³³ Article 8 of the Saudi Public Security Law, which came into force before the creation of the prosecution department, calls into question the extent of prosecutorial independence, however. It specifies that the public security director has the right “To present to the Public Prosecution his suggestions and observations that lead to the betterment of Public Security Situation.”¹³⁴ The law also makes it a duty for the public security director “To inform the Public Prosecution by detailed reports of all he thinks influenced the operation of justice and what he thinks needed to be reviewed.”¹³⁵

Saudi law does not protect the right to challenge the lawfulness of one’s detention, but merely obligates the prosecutor to obtain a progressively higher level of authorization within the prosecution service to prolong detention beyond the initial five days, initially by installments of any length up to 40 days, and then by installments of up to 30 days for up to six months from the date of arrest. “Thereafter, the accused shall be directly transferred to the competent court, or be released.”¹³⁶ Accordingly, under Saudi law, suspects might have to wait six months before being able to challenge the lawfulness of their detention.

Access to files

A practical obstacle for a detainee looking to challenge the legality of his or her detention is that few prisoners—either directly or through a lawyer—have access to their judicial files. In theory, prisoners do have a right of access while in prison to their files, which should include relevant decisions in their cases including ultimately a verdict and sentence.¹³⁷ In practice it is a different matter. Hisham, a lawyer in Khobar, told Human Rights Watch that he defended one of the accused in a recent case involving charges of drug and alcohol production and consumption, which included material and forensic evidence. “I was given no files, only an oral briefing [by the prosecutor],” he said. “The prosecution prepared a charge sheet, which the defense can see, but I did not get a copy until it was read in the first session in court.”¹³⁸

Lack of access to files compounds the problem that prisoners may be unaware of, or unable to prove, what sentences they have been given, and so cannot challenge their continued detention. Yunis, a Somali man imprisoned in Jeddah’s Buraiman prison for nine years, told Human Rights Watch that as far as he was aware no one in his wing of the prison had a copy of their own verdicts.¹³⁹ Nizar in al-Ha’ir prison told Human Rights Watch, “I have been here since November 11, 2003, but have never seen my verdict.”¹⁴⁰ Two detainees told Human Rights Watch that they and fellow detainees learned of their sentences from their jailers, not from a judge.¹⁴¹

Lack of access to one’s files impacts on the right to appeal a sentence. Saudi Chief Judge Salih al-Luhaidan told Human Rights Watch that a defendant who intends to appeal the verdict does not have the right to receive a written verdict. “It is the right of the accused to appeal his ruling. If he does not approve of the verdict, then he is not provided with the written ruling. The reason for this is that Islam does not allow a ruling upon a person who does not accept such ruling.”¹⁴²

Walid told Human Rights Watch that he had been sentenced to two months in prison and 90 lashes for “possession of an unlicensed firearm and for shooting in the air.” He had already spent two months in Najran General Prison before being taken to court—something he was informed of only the day before it happened. Walid said that when he objected both to the verdict and the sentence, pointing out that he had already been detained for over two months, “[Judge al-Dusari told me,] ‘You can sign [and accept] your verdict or not sign and go to the Appeals Court and stay in prison for months until it comes back.’ So I agreed.”¹⁴³

Lack of access to files also means that if a decision has been taken about his or her release a detainee may not have access to that decision to have it enforced. Saif, an Egyptian citizen who had worked in Saudi Arabia since 1976, was imprisoned pending deportation while a case against his former employer was ongoing. Saif told Human Rights Watch that he was unable to gain access to a court document that could prove that the judge had ordered him released pending the outcome of the trial and had ordered a stop to his deportation.¹⁴⁴

Ramzi, an Egyptian biomedical engineer who worked in Saudi Arabia for 13 years, said that he was imprisoned in Buraiman jail in Jeddah after his sponsor and employer sued him for embezzlement. He remained in detention even after his conviction was overturned and his employer consequently withdrew his private claim. Forty-five days after all charges against him had been dropped, he had no means of accessing his file or proving his case to demand his release. He told us, “I went to court and saw the letter by my opponent saying he’d withdrawn all claims. I don’t know why I’m still here. You cannot present a complaint here in prison. The head of the [prison] wing will throw it into the trash.”¹⁴⁵