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CAT/C/80/D/1062/2021

Hana Al Hasani v. Morocco

UNO-Ausschuss gegen Folter (CAT) · 2024-07-19 · en UN

Decision; Subjects: MOROCCO, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]

Volltext (verifizierbarer Originaltext)

GE.24-15622 (E) 311024 011124

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1062/2021*, **, ***

Communication submitted by:

Hana Al Hasani (represented by counsel, MENA

Rights Group)

Alleged victim:

Osama Al Hasani

State party:

Morocco

Date of complaint:

11 March 2021 (initial submission)

Document references:

Decision taken pursuant to rules 114 and 115 of

the Committee’s rules of procedure, transmitted

to the State party on 12 March 2021 (not issued

in document form)

Date of adoption of decision:

19 July 2024

Subject matter:

Deportation to Saudi Arabia

Procedural issues:

None

Substantive issues:

Risk of torture or other cruel, inhuman or

degrading treatment if deported to country of

origin

Articles of the Convention:

3 and 22

1.1

The complainant is Hana Al Hasani, a Moroccan national. She is submitting the

communication on behalf of her husband, Osama al Hasani (Osama al Mahrouqi), a citizen

of Saudi Arabia and Australia, born in 1978.1 He is subject to an order expelling him to Saudi

Arabia. The complainant claims that the extradition of Mr. Al Hasani would constitute a

violation by the State party of article 3 of the Convention. The State party made the

declaration under article 22 (1) of the Convention on 19 October 2006. The complainant is

represented by counsel.

1.2

On 12 March 2021, pursuant to rule 114 of its rules of procedure, the Committee,

acting through its Rapporteur on new complaints and interim measures, asked the State party

not to expel Mr. Al Hasani to Saudi Arabia while the complaint was being considered.

* Adopted by the Committee at its eightieth session (8–26 July 2024).

** The following members of the Committee participated in the examination of the communication:

Todd Buchwald, Jorge Contesse, Claude Heller, Peter Vedel Kessing, Maeda Naoko, Ana Racu and

Bakhtiyar Tuzmukhamedov.

*** A joint opinion by Committee members Todd Buchwald, Jorge Contesse and Peter Vedel Kessing

(dissenting) is annexed to the present decision.

1 The Red Notice issued in respect of Mr. Al Hasani by the International Criminal Police Organization

(INTERPOL) states that he was born on 1 December 1981.

United Nations

CAT/C/80/D/1062/2021

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

24 September 2024

English

Original: French

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1.3

On 13 March 2021, the State party informed the Committee that it had already

extradited Mr. Al Hasani to Saudi Arabia at 2.45 a.m. the same day, before the note verbale

containing the request for interim measures had been received by the competent Moroccan

authorities.

Factual background

2.1

On 8 February 2021, Mr. Al Hasani was arrested by the Moroccan police in Tangier,

in the presence of the complainant and their child. Immediately after the arrest, Mr. Al Hasani

was transferred to police headquarters in Tangier, where he found out about the Red Notice

that had been issued against him by INTERPOL on 6 December 2016, at the request of Saudi

Arabia. On 10 February 2021, the complainant was allowed to visit Mr. Al Hasani. During

that visit, the latter told the complainant that he had been pressured to sign an acceptance of

surrender to the Saudi authorities, which he had refused to do. The complainant states that

she herself was detained for four hours and pressured to convince Mr. Al Hasani to accept

extradition. In violation of the Moroccan Code of Criminal Procedure,2 Mr. Al Hasani was

only granted access to a lawyer when he was brought before the Crown Prosecutor at Tangier

Court of First Instance, after having spent three days in police custody. The Prosecutor

referred him to the Criminal Chamber of the Court of Cassation on 11 February 2021. The

complainant further states that Mr. Al Hasani was never brought before an independent

judicial authority competent to examine the legality of the extradition procedure between his

arrest and his appearing before the Criminal Chamber of the Court of Cassation.

2.2

On 11 February 2021, the Saudi Attorney General submitted an extradition request

for Mr. Al Hasani to his Moroccan counterpart.3 The request stated that he was wanted for a

car theft that occurred in February 2015 and involved six other defendants. According to the

Saudi authorities, Mr. Al Hasani left the country on 4 July 2015. The extradition request was

accompanied by an arrest warrant of the same date, based on an indictment relating to the

alleged theft of an unspecified number of cars estimated to be worth more than $600,000.

2.3

The complainant contends that, on 27 March 2018, well before Mr. Al Hasani’s arrest

in Tangier, Jeddah Criminal Court had sentenced his co-accused to three months’

imprisonment. They were subsequently released in view of the time they had already spent

in pretrial detention. During the proceedings, the relevant governor’s office and the Prince

Sultan Ben Turki Ben Abdelaziz Al Saoud, who is an acquaintance of Mr. Al Hasani, had

testified in favour of the co-defendants. According to the complainant, the Prince Sultan, a

member of the royal family, is currently a victim of enforced disappearance. In its decision,

the Jeddah court did not rule on the case of Mr. Al Hasani as he was abroad. The report setting

out the judgment mentions allegations of torture and ill-treatment made by Mr. Al Hasani’s

co-defendants. The decision was upheld on appeal by the First Criminal Chamber of Mecca

on 30 May 2018.

2.4

On 23 February 2021, Mr. Al Hasani was transferred to Tiflet prison, where he

received consular assistance from Australia. On 8 March 2021, he was referred to the

Criminal Chamber of the Court of Cassation of Morocco. During the hearing, his lawyers

highlighted the risk of torture and ill-treatment that he would face and the fear that his right

to life would be violated if he was extradited. On 10 March 2021, the Court of Cassation

granted the extradition request made by Saudi Arabia.

Complaint

3.1

The complainant alleges that, in the event of Mr. Al Hasani’s being returned to Saudi

Arabia, where he risks being subjected to torture and other inhuman and degrading treatment,

the State party would be in breach of its obligations under article 3 of the Convention. She

maintains that the general human rights situation in Saudi Arabia is particularly worrying,

and refers in this regard to the Committee’s assessment in its concluding observations on the

second periodic report of Saudi Arabia that torture and other forms of ill-treatment are

2 The complainant notes that article 66 of the Code of Criminal Procedure sets the duration of police

custody at 48 hours, with the possibility of an extension of a further 24 hours, subject to the

authorization of a public prosecutor.

3 A copy of this request is available in the case file (in Arabic).

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commonly practised in Saudi prisons.4 The complainant points out that this assessment is

corroborated by the conclusions of the Special Rapporteur on the promotion and protection

of human rights and fundamental freedoms while countering terrorism.5 She adds that the

present complaint is similar to the case of Alhaj Ali v. Morocco,6 concerning the extradition

of a Syrian national to Saudi Arabia. In that case, the Committee had found a violation of

article 3 of the Convention by Morocco.7 She also notes that Saudi law does not contain any

definition of torture or any clear provision establishing the absolute and non-derogable

prohibition of torture and ill-treatment.8 The complainant also asserts that, in Saudi Arabia,

under Islamic law, there is no Criminal Code and no specific penalty for theft, which can be

punished by amputation or other more severe penalties.

3.2

The complainant maintains that Mr. Al Hasani runs a personal risk of being subjected

to torture if he is returned to Saudi Arabia. She recalls that his co-defendants have stated that

they were subjected to torture during questioning. She also recalls that the closeness of

Mr. Al Hasani to the Prince Sultan Ben Turki Ben Abdelaziz Al Saoud, who is considered a

dissident in the Saudi Kingdom, is an additional risk factor, since the latter has spoken out in

favour of the defendants in the case concerning Mr. Al Hasani. The complainant also

maintains that Mr. Al Hasani suffers from high blood pressure and recently had a heart attack.

He thus needs medication to prevent another attack. The complainant asserts that Mr. Al

Hasani’s family was not, however, allowed to bring him the medication he needed or to share

his medical records with the competent authorities.

3.3

The complainant argues that, in Mr. Al Hasani’s case, all available domestic remedies

have been exhausted as, even if a request to rescind the expulsion order against him could be

made, that request would not effectively prevent his extradition, which is contrary to the

Committee’s general comment No. 4 (2017).9 She states that the present complaint has not

been submitted for examination by another international body of investigation or settlement.

State party’s observations on the merits

4.1

The State party submitted its preliminary observations on the merits of the complaint

in a note verbale dated 1 April 2021.

4.2

The State party explains that, on 12 March 2021 at 4 p.m., the Rabat criminal

investigation police notified Mr. Al Hasani of the extradition order dated 11 March 2021

issued by the Head of Government in connection with an international arrest warrant issued

against him by the Saudi authorities through INTERPOL. The State party indicates that

Mr. Al Hasani’s extradition was accompanied by all the necessary legal safeguards, in

accordance with the Riyadh Arab Convention on Judicial Cooperation, with the cooperation

of the national central office in Riyadh and the Arab liaison offices in both countries. The

State party adds that Mr. Al Hasani was transferred by the Moroccan police to Rabat-Salé

airport, where he was handed over to their Saudi counterparts, and then boarded a special

Saudi flight to Riyadh.10

4.3

Regarding respect for judicial safeguards, the State party explains that, during the

judicial proceedings before the Court of Cassation, Mr. Al Hasani enjoyed all his rights,

including the right to be assisted by counsel, who had the opportunity to put forward a defence

on his behalf. The Court of Cassation finally decided to confirm Mr. Al Hasani’s extradition

after several postponements requested by his lawyers. The State party also explains that,

during his detention in Tangier and Tiflet, Mr. Al Hasani received appropriate medical care

and that the last medical examination dated 11 March 2021 established that he was well

enough to be extradited. The State party further explains that a delegation from the National

Human Rights Council visited Mr. Al Hasani on 5 March 2021 and that he received consular

4 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 7.

5 A/HRC/40/52/Add.2, p. 1.

6 CAT/C/58/D/682/2015.

7 Ibid., para. 9.

8 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 5.

9 Committee against Torture, general comment No. 4 (2017), para. 18 (e).

10 As Mr. Al Hasani’s passport had expired, the Embassy of Saudi Arabia in Rabat issued a travel

document on 12 March 2021 to allow him to make the trip.

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assistance in the form of visits to the prison, as well as visits from his lawyers and his wife

on 11 March 2021.

Complainant’s comments on the State party’s observations

5.1

On 19 April 2021, the complainant submitted her comments on the State party’s

observations. She points out that the latter does not challenge the admissibility of the

complaint. On the merits, the complainant maintains that the State party has failed to take

into account the human rights situation in Saudi Arabia. She stresses that it has not denied

that torture is a common practice in Saudi Arabia.

5.2

The complainant argues that the State party has failed to take into account the personal

risks faced by Mr. Al Hasani in Saudi Arabia, since, in the country, the crime of car theft is

punishable by corporal punishment and her husband is being prosecuted in a case marked by

allegations of torture made during the trial. The complainant adds that, in accordance with

paragraph 29 (k) of the Committee’s general comment No. 4 (2017), the Moroccan

authorities should have carried out an assessment of the risk of the person concerned being

subjected to enforced disappearance in the event of extradition.11 She recalls that, in its

jurisprudence, the Committee has taken the position that enforced disappearance constitutes

for the disappeared person, or could constitute for his or her family and relatives, a form of

torture or inhuman treatment contrary to the Convention.12 The complainant points out that

the State party has not indicated that it has sought “diplomatic assurances” from the

requesting State to ensure that Mr. Al Hasani is treated in accordance with the conditions set

by the sending State and in accordance with international human rights standards.

5.3

With regard to the extradition proceedings concerning Mr. Al Hasani, the complainant

stresses that Moroccan extradition law does not meet the requirements of article 3 of the

Convention, which establishes the principle of non-refoulement, since it does not allow an

appeal to be lodged against the expulsion order before an independent administrative and/or

judicial body within a reasonable time frame.13 With regard to the conditions in which the

extradition was carried out, the complainant points out that the State party has not indicated

the precise time at which Mr. Al Hasani was received by the Saudi authorities. She draws

attention to the information that Mr. Al Hasani’s extradition was carried out by special flight

on 13 March 2021 at 2.45 a.m., even though Rabat-Salé airport was closed. 14 The

complainant further notes that the State party has not specified any grounds that might have

justified Mr. Al Hasani’s extradition under such conditions.

5.4

The complainant points out that extradition proceedings in the State party are

generally lengthy, sometimes lasting several years.15 She considers that the modus operandi

employed in the case of Mr. Al Hasani suggests that the facts that prompted his extradition

are political in nature. The complainant challenges the State party’s assertion that it had

handed Mr. Al Hasani over to the Saudi authorities well before it learned of the Committee’s

request for interim measures. She considers that there are reasonable grounds to believe that

the State party either deliberately accelerated the extradition proceedings to avoid having to

suspend them or chose to ignore the request for interim measures transmitted on the eve of

the extradition. Lastly, the complainant considers that, by proceeding in this way, the State

party has deliberately chosen to ignore the context of serious human rights violations in Saudi

Arabia16 and questions the State party’s willingness to apply article 22 of the Convention in

good faith. Consequently, the complainant requests the Committee to find that

11 See, in particular, bladi.net, “No news from Osama Al-Hasani since his extradition by Morocco”,

18 March 2021. The complainant states that Mr. Al Hasani’s situation has been referred to the

Working Group on Enforced or Involuntary Disappearances, see A/HRC/WGEID/121/1, annex I,

paras. 32–49.

12 Hernández Colmenarez and Guerrero Sánchez v. Bolivarian Republic of Venezuela

(CAT/C/54/D/456/2011), para. 6.4.

13 Committee against Torture, general comment No. 4 (2017), para. 18 (e).

14 According to the complainant, the airport is closed between midnight and 6 a.m.

15 See, in this regard, Alhaj Ali v. Morocco.

16 Ibid., para. 8.5.

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Mr. Al Hasani’s extradition to Saudi Arabia constitutes a violation of articles 3 (1) and 22 of

the Convention.

5.5

On 5 May 2021, the complainant submitted to the Committee an affidavit from the

Saudi Ministry of Justice, dated 25 September 2019,17stating that the six co-accused, together

with Mr. Al Hasani, had been cleared of any wrongdoing in the car theft case for which they

were being prosecuted in Saudi Arabia, owing to the lack of evidence presented by the

prosecutors. The complainant argues that, in accordance with this document, the Red Notice

issued in respect of Mr. Al Hasani should be lifted and that, consequently, the extradition

carried out on 13 March 2021 was based on a Red Notice that should have been cancelled.

State party’s additional observations

6.1

On 19 November 2021, the State party reported that, on 23 March 2018, Mr. Al Hasani

had filed a complaint under the name of Osama Talal Abbas al Mahrouqi with the Tangier

police regarding the theft of a car registered in Saudi Arabia. When his identity was being

verified, Mr. Al Hasani fled the premises of the criminal investigation police. On 8 February

2021, following his arrest on the instructions of the prosecutor’s office attached to Tangier

Court of First Instance, he was held in police custody until 11 February 2021 at 10 a.m., after

an extension of 24 hours.18

6.2

The State party explains that, contrary to what has been alleged by the complainant,

Mr. Al Hasani’s arrest took place on the basis of the aforementioned national arrest warrant,

as confirmed by the police report detailing his transfer, the warrant for his arrest, the related

investigation and his arrest, dated 8 February 2021. The State party also points out that, when

Mr. Al Hasani was arrested, he refused to have his identity verified by fingerprinting or the

taking of a biological sample, even though he was in possession of several foreign bank cards,

one of which was in the name of Osama al Mahrouqi. The subsequent verification of his

identity revealed that Mr. Al Mahrouqi was the subject of an international arrest warrant

issued on 7 December 2015 by the Bureau of Investigation and Public Prosecution of Saudi

Arabia,19 after which a Red Notice had been issued against him on 6 December 2016 by

INTERPOL.20

6.3

The State party indicates that, when Mr. Al Hasani was in police custody, under the

supervision of the competent prosecutor’s office, all the judicial safeguards to which he was

entitled were respected, including the right to be informed of the reasons for his arrest, to

remain silent, to notify his family21 and to communicate with a lawyer. On 9 February 2021,

while in police custody, Mr. Al Hasani was assisted by a lawyer from the Tangier Bar

Association22 as part of a confidential consultation.

6.4

The State party adds that Mr. Al Hasani was heard on 11 February 2021 by the Crown

Prosecutor at Tangier Court of First Instance, in accordance with article 730 of the Code of

Criminal Procedure, and that, at that time, he stated his other identity – Osama Al Hasani, an

Australian national, born on 11 December 1978 in Hawiya – as it appears on his Australian

passport. After being notified of the international arrest warrant and the extradition request

submitted by the Saudi authorities, Mr. Al Hasani stated that he refused to appear before the

Saudi judicial authorities and to be extradited, and that he opposed any procedure related to

the taking of his fingerprints to verify his true identity. The Crown Prosecutor then placed

him in detention pending extradition. The Saudi Arabian and Australian embassies were

informed. The State party considers that, by deliberately causing confusion over his identity

for several years and seeking to obstruct the establishment of his true identity when he was

arrested, Mr. Al Hasani was clearly seeking to evade justice.

17 See Human Rights Watch, “Saudi Arabia: reveal status of Saudi-Australian”, 4 May 2021.

18 This extension was granted by written authorization No. 11 0 92/2021 issued by the competent

prosecutor’s office on 9 February 2021.

19 Warrant No. 2/7/26797.

20 The INTERPOL Red Notice was registered under number A-11101/12-2016.

21 In accordance with article 66 of the Moroccan Code of Criminal Procedure and article 9 of the

International Covenant on Civil and Political Rights.

22 In accordance with article 66 of the Moroccan Code of Criminal Procedure.

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6.5

The State party points out that, in the context of the measures taken during the health

emergency linked to the coronavirus disease (COVID-19) pandemic, and in order to protect

other detainees, Mr. Al Hasani was heard remotely during the judicial proceedings before the

Court of Cassation. He was accorded all his rights, including the right to be assisted by

counsel, who were given the opportunity to present a defence on his behalf. The State party

further indicates that the hearing initially scheduled for 3 March 2021 was finally held on

8 March 2021, following a postponement requested by Mr. Al Hasani’s defence counsel, who

was able to follow the hearing.

6.6

The State party recalls that article 41 of the Riyadh Arab Convention on Judicial

Cooperation provides that extradition cannot be granted if the offence for which extradition

is requested is, according to the laws in force in the requesting State, of a political nature, and

that article 721 of the Moroccan Code of Criminal Procedure provides that extradition cannot

be granted if the State has serious reasons to believe that the extradition request, ostensibly

motivated by an ordinary offence, has in fact been made for the purpose of prosecuting or

punishing an individual for reasons of race, religion, nationality or political opinion, or is

likely to exacerbate the situation of that individual for any of these reasons. In the present

case, the State party points out that the Court of Cassation considered that Mr. Al Hasani had

not advanced any serious grounds for asserting that the request for his extradition was

politically motivated, taking into account the documents in the case file. The State party also

rejects the complainant’s claim that Mr. Al Hasani had been forced to sign a document by

which he agreed to be returned to Saudi Arabia, since, as is clear from the pleadings,

Mr. Al Hasani had expressed his refusal to be extradited. The State party stresses that this

allegation was never raised by Mr. Al Hasani before the national courts.

6.7

As for the complainant’s allegation that Mr. Al Hasani had not been brought before

an independent judicial authority empowered to examine the legality of the extradition

proceedings between his arrest and his being brought before the Court of Cassation, the State

party explains that, under article 734 of the Code of Criminal Procedure, the person

concerned was free to request his pretrial release at any time during the proceedings, pending

a final decision by the Court of Cassation, in accordance with article 9 (4) of the International

Covenant on Civil and Political Rights. The State party points out that, in the present case,

the person concerned only lodged an application for pretrial release with the Court of

Cassation, which it subsequently found to be baseless and rejected. The State party explains

that the proceedings initiated against Mr. Al Hasani in 2018 have been closed and that these

proceedings against him are standard extradition proceedings.

Complainant’s comments on the State party’s additional observations

7.1

On 10 December 2021, the complainant submitted comments on the State party’s

additional observations. She points out that the report produced by the Tangier police on

8 February 2021, following Mr. Al Hasani’s arrest, shows that the authorities were aware of

both of Mr. Al Hasani’s identities and of the existence of an international arrest warrant

against him as early as 23 March 2018, in other words, when he was questioned at the Tangier

police station. The complainant points out that the State party has not commented on the

affidavit from the Saudi Ministry of Justice dated 25 September 2019, which exonerates

Mr. Al Hasani in connection with his alleged involvement in a common law offence and

which would invalidate the Red Notice issued against him.23

7.2

The complainant states that, contrary to the information submitted by the State party,

her complaint did not indicate that Mr. Al Hasani had been forced to sign a document by

which he agreed to be returned to Saudi Arabia, rather that he had informed her on

10 February 2021 that he had been pressured to sign such a document. The complainant

points out that, in its observations, the State party did not comment on the possibility of

Mr. Al Hasani’s being a national of Morocco, 24 given that his father held Moroccan

nationality.25

23 This document was emailed to the Committee on 6 May 2021.

24 This question was raised during the hearing of 8 March 2021 by his defence lawyers.

25 In this respect, the complainant does not rule out the possibility of a violation by the State party of

article 721 (1) of the Code of Criminal Procedure, which prohibits the extradition of its nationals.

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7.3

The complainant points out that, in its response, the State party makes no reference to

its obligations under the Convention, particularly article 3, rather only to compliance with

article 41 of the Riyadh Arab Convention on Judicial Cooperation and article 721 of the Code

of Criminal Procedure. The complainant also points out that these provisions do not meet the

requirements of article 3 of the Convention. She points out that, in its jurisprudence, the

Committee has recalled that article 721 of the Moroccan Code of Criminal Procedure does

not specifically mention the risk of torture and ill-treatment in the event of extradition.26

7.4

The complainant states that, in May 2021, Mr. Al Hasani’s fate and whereabouts were

still unknown.27 She further states that, on 5 September 2021, it was reported that the Saudi

Specialized Criminal Court had sentenced Mr. Al Hasani to 4 years’ imprisonment.28 She

recalls that the Committee has already found that this court is not sufficiently independent

and that it ignores allegations of ill-treatment during the questioning of detainees.29

7.5

In view of the foregoing, the complainant reiterates that Mr. Al Hasani’s extradition

to Saudi Arabia constitutes a violation of articles 3 (1) and 22 of the Convention. Lastly, the

complainant requests the Committee to call on the State party to grant her full reparation, in

view of the seriousness of the violation and the harm suffered in connection with Mr. Al

Hasani’s extradition, and to provide guarantees of non-repetition, including through

legislative reform that takes account of article 3 of the Convention by guaranteeing the right

of any person subject to an expulsion order to lodge an appeal suspending its enforcement.30

State party’s additional observations

8.

On 13 July 2022, the State party submitted additional observations. The State party

points out that Mr. Al Hasani had argued in his defence before the Court of Cassation that he

held Moroccan nationality, presenting a marriage certificate dated 1442 Hijri (2021) and a

birth certificate dated the same year. The State party explains that, after examining the

documents submitted, the Court of Cassation concluded that they did not relate to the person

concerned, that the name appearing in the documents was Mr. Osama Al Hasani and that the

name of the father appearing there was Ahmed ben Selam Al Hasani, whereas, when the

identity of the person concerned was verified before the Crown Prosecutor at Tangier Court

of First Instance and before the Court of Cassation, Mr. Al Hasani had stated that his father’s

name was Ali. The State party adds that the checks carried out by the police throughout the

proceedings did not at any time reveal that the person concerned might hold Moroccan

nationality.

Issues and proceedings before the Committee

Consideration of admissibility

9.1

Before considering any complaint submitted in a communication, the Committee must

decide whether it is admissible under article 22 of the Convention. The Committee has

ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same

matter has not been and is not being examined under another procedure of international

investigation or settlement.

9.2

In accordance with article 22 (5) (b) of the Convention, the Committee shall not

consider any communication from an individual unless it has ascertained that the individual

has exhausted all available domestic remedies. The Committee notes that, as Mr. Al Hasani’s

appeals were rejected, he was handed down a definitive negative decision concerning the

requested stay of his deportation to Saudi Arabia and that the State party has not contested

26 Bakay v. Morocco (CAT/C/68/D/826/2017), para. 7.11.

27 See, in particular, Human Rights Watch, “Saudi Arabia: reveal status of Saudi-Australian”, 4 May 2021.

28 See Arab Organisation for Human Rights in the UK, “Saudi Arabia: a 4-year prison sentence for

academic Osama al-Hasani”, 5 September 2021; and Together for Justice, “The verdict against

Osama Al-Hasani confirms his extradition from Morocco on political grounds”, 7 September 2021.

29 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 17.

30 According to the complainant, article 721 of the Code of Criminal Procedure, which deals with the

grounds for refusing extradition, should also be amended to fully reflect article 3 of the Convention.

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the admissibility of the complaint. The Committee therefore finds that it is not precluded by

article 22 (5) (b) of the Convention from considering the present communication.

9.3

As the Committee finds no further obstacles to admissibility, it declares the complaint

admissible and proceeds with its consideration of the merits.

Consideration of the merits

10.1

The Committee has considered the present communication in the light of all the

information made available to it by the parties, in accordance with article 22 (4) of the

Convention.

10.2

In the present case, the issue before the Committee is whether the extradition of Mr. Al

Hasani to Saudi Arabia constitutes a violation of the State party’s obligation under article 3

of the Convention not to expel or return (“refouler”) a person to another State where there

are serious grounds for believing that he or she would be in danger of being subjected to

torture or other cruel, inhuman or degrading treatment or punishment.

10.3

The Committee must consider whether there are substantial grounds for believing that

Mr. Al Hasani would be personally in danger of being subjected to torture if he was returned

to Saudi Arabia. In assessing that risk, it must, pursuant to article 3 (2) of the Convention,

take into account all relevant considerations, including the existence of a consistent pattern

of gross, flagrant or mass violations of human rights.31 However, the Committee recalls that

the aim of this determination is to establish whether the individual concerned would be

personally at a foreseeable and real risk of being subjected to torture in the country to which

he or she would be returned. It follows that the existence of a pattern of gross, flagrant or

mass violations of human rights in a country does not as such constitute sufficient reason for

determining that a particular person would be in danger of being subjected to torture on return

to that country. Additional grounds must be adduced to show that the individual concerned

would be personally at risk. Conversely, the absence of a consistent pattern of flagrant

violations of human rights does not mean that a person might not be subjected to torture in

his or her specific circumstances.32

10.4

The Committee recalls its general comment No. 4 (2017), which states, first, that the

non-refoulement obligation exists whenever there are “substantial grounds” for believing that

the person concerned would be in danger of being subjected to torture in the State to which

he or she is facing deportation, either as an individual or as a member of a group which may

be at risk of being tortured in the State of destination and, second, that the Committee’s

practice has been to determine that “substantial grounds” exist whenever the risk is

“foreseeable, personal, present and real”.33 It also recalls that the burden of proof is borne by

the complainant, who must present an arguable case – that is, submit substantiated arguments

showing that the danger of being subjected to torture is foreseeable, personal, present and

real. However, when the complainant is in a situation where he or she cannot elaborate on

his or her case, the burden of proof is reversed and the State party concerned must investigate

the allegations and verify the information on which the communication is based. 34 The

Committee gives considerable weight to findings of fact made by organs of the State party

concerned; however, it is not bound by such findings, as it can make a free assessment of the

information available to it in accordance with article 22 (4) of the Convention, taking into

account all the circumstances relevant to each case.35

10.5

The Committee recalls its concluding observations on the second periodic report of

Saudi Arabia, in which it expressed concern about the number and seriousness of allegations

that it had received relating to acts of torture and ill-treatment inflicted on detainees by law

enforcement officials. The Committee also expressed its deep concern about the forms of

corporal punishment imposed under Saudi law, which include lashings and amputations, in

clear and grave violation of the Convention. In addition, the Committee expressed concern

31 Committee against Torture, general comment No. 4 (2017), para. 43.

32 Kalinichenko v. Morocco (CAT/C/47/D/428/2010), para. 15.3.

33 Committee against Torture, general comment No. 4 (2017), para. 11.

34 Ibid., para. 38.

35 Ibid., para. 50.

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about the penalties provided for by law, which include such corporal punishment and which

the Committee considered to constitute torture and cruel, inhuman or degrading treatment.36

10.6

While noting the prevailing human rights situation in Saudi Arabia described above,

the Committee nevertheless points out that there must be additional grounds for believing

that the person concerned would be personally at risk. In the present case, the Committee

notes the complainant’s arguments that the State party breached its obligations under article

3 of the Convention by returning her husband, Mr. Al Hasani, to Saudi Arabia, where he is

being prosecuted for theft. The Committee also notes the complainant’s allegation that there

is no definition of torture or a Criminal Code in Saudi law, and that there is no specific penalty

for theft, which can be punished by amputation or more severe penalties.

10.7

The Committee’s established jurisprudence is that it is within the purview of the courts

of States parties to assess the facts and evidence in a case. The appeal courts of States parties

are responsible for reviewing the conduct of a trial, unless it can be established that the

evidence was assessed in a patently arbitrary manner or one that amounted to a miscarriage

of justice.37

10.8

The Committee recalls that the torture or ill-treatment to which a complainant claims

to have been subjected in the past is a factor to be considered when assessing the risk of being

subjected again to torture or ill-treatment that he or she will face in the event of a return to

his or her country.38 In the present case, the Committee notes that the complainant has not

produced any information on the acts of torture to which Mr. Al Hasani may have been

personally subjected in the past.

10.9

The Committee notes that, although the complainant has not alleged that Mr. Al

Hasani undertook any political activities in Saudi Arabia, she considers that the expeditious

manner in which his extradition was carried out, disregarding the request for interim

measures transmitted to the State party the previous day, suggests that the facts which led to

his extradition are political in nature. The Committee also notes the information provided by

the complainant to the effect that the closeness of Mr. Al Hasani to the Prince Sultan Ben

Turki Ben Abdelaziz Al Saoud, who is considered to be at odds with the Saudi Kingdom, is

an additional risk factor, since the latter has spoken out in favour of the defendants in the

case concerning Mr. Al Hasani. The Committee notes, however, that the complainant has not

explained how Mr. Al Hasani’s link to the Prince Sultan Ben Turki Ben Abdelaziz Al Saoud

alone could be considered a political activity that would be of interest to the Saudi authorities.

10.10 The Committee notes the complainant’s allegation that the State party’s authorities

failed to assess the personal risks faced by Mr. Al Hasani in the event of his extradition to

Saudi Arabia, given that he was facing prosecution there for car theft, a crime punishable by

corporal punishment, and that the case in which he was involved was marked by allegations

of torture made by co-defendants during their trial in Saudi Arabia. The Committee also notes

that the complainant argued that the State party had also failed to assess the risk of

disappearance to which Mr. Al Hasani could be exposed, and that enforced disappearance

could constitute a form of torture or inhuman treatment for the disappeared person and his or

her relatives.39

10.11 The Committee notes that, according to the State party, Mr. Al Hasani confused the

Moroccan authorities about his identity by presenting himself on the one hand as Osama Talal

Abbas al Mahrouqi, born on 1 December 1981 in Saudi Arabia, and, on the other, as Osama

Al Hasani, born on 11 December 1978 in Hawiya, Saudi Arabia, and an Australian national.

It also notes that, initially, Mr. Al Hasani refused to have his identity verified during his arrest

in Tangier on 8 February 2021 and that, eventually, this verification revealed that Mr. Al

Hasani was the subject of an international arrest warrant for car theft issued by Saudi Arabia,

and then the subject of an INTERPOL Red Notice issued on 6 December 2016. The

Committee further notes that, while the complainant has not contested Mr. Al Hasani’s two

36 See CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1.

37 Ktiti v. Morocco (CAT/C/46/D/419/2010), para. 8.7.

38 Committee against Torture, general comment No. 4 (2017), para. 49 (b), (c) and (d).

39 Ibid., para. 29 (k). See also Hernández Colmenarez and Guerrero Sánchez v. Bolivarian Republic of

Venezuela, para. 6.4.

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identities, she indicates that the police were aware of this information from the time of his

arrest in Tangier in 2018.

10.12 The Committee notes that, according to the complainant, it had been reported on

5 September 2021 that Mr. Al Hasani had been sentenced to 4 years’ imprisonment by the

Saudi Specialized Criminal Court while recalling that the Committee had already indicated

that this court was not sufficiently independent and ignored allegations of ill-treatment during

the questioning of detainees. The Committee notes that, in her complaint, the complainant

had indicated that, on 27 March 2018, Jeddah Criminal Court had sentenced Mr. Al Hasani’s

co-accused to three months’ imprisonment and had then released them, taking into account

the time already spent in pretrial detention. The Committee also notes that, on 5 May 2021,

the complainant submitted to the Committee an affidavit from the Saudi Ministry of Justice

dating from 25 September 2019, according to which the six co-accused, together with Mr. Al

Hasani, had been cleared of any wrongdoing in the car theft case for which they were being

prosecuted in Saudi Arabia owing to a lack of evidence and that, consequently, the Red

Notice issued in respect of Mr. Al Hasani should have been lifted.

10.13 The Committee notes that the complainant was unable to explain, firstly, how Mr. Al

Hasani’s co-accused had been sentenced by Jeddah Criminal Court to three months’

imprisonment and then released on 27 March 2018 and, secondly, how Mr. Al Hasani could

have been convicted in Saudi Arabia for acts of which he had reportedly been cleared in 2021,

following his expulsion from Morocco. The Committee also notes that the complainant has

not demonstrated how the fear that Mr. Al Hasani would be at risk of torture was justified,

since she has not indicated whether the detention and sentencing to imprisonment of her

husband in Saudi Arabia had been accompanied or followed by torture or ill-treatment.

10.14 The Committee notes the complainant’s allegations regarding the failure to respect

judicial safeguards prior to the extradition of Mr. Al Hasani, who had been denied access to

a lawyer for the first three days following his arrest by the Moroccan authorities. It also notes

that, according to the State party, Mr. Al Hasani was visited and assisted by his lawyers

during his detention and before the Court of Cassation, where they were able to present their

case; that he also underwent a final examination according to which he was fit to be deported;

and that he also benefited from consular assistance, including from Australia. The Committee

notes that the complainant has not contested the fact that Mr. Al Hasani benefited from these

judicial safeguards. It also notes that the complainant stated that Mr. Al Hasani had informed

her on 10 February 2021 of the pressure under which he had been placed to sign a document

concerning his deportation to Saudi Arabia. The Committee notes that, in its response, the

State party indicated that Mr. Al Hasani had never raised this argument before the national

courts and that, in any case, the person concerned had expressed his refusal to be extradited.

10.15 The Committee notes that the State party informed it that Mr. Al Hasani was

extradited to Saudi Arabia at 2.45 a.m. on 13 March 2021, before the Moroccan authorities

were able to consider the request for interim measures. It also notes that, according to the

information available, the note verbale including the request for interim measures was

submitted electronically to the State party on 12 March 2021 at 2.14 p.m. The Committee

notes the complainant’s assertion that the State party was indeed aware of the existence of

the request for interim measures and that, by refusing to comply with it, it failed in its

obligation to apply articles 3 (1) and 22 of the Convention in good faith. The Committee

notes the short time that elapsed between the submission of the note verbale and the

enforcement of the extradition order, and regrets that the Moroccan authorities did not have

time to respond to the request for interim measures sent to the State party. However, in these

circumstances and in view of the available evidence, the Committee is unable to conclude

that the Moroccan authorities wilfully failed to give effect to the request for interim measures,

which was transmitted to them only a few hours before Mr. Al Hasani’s extradition.

10.16. The Committee is concerned about the numerous reports of human rights violations,

including the use of torture and ill-treatment in Saudi Arabia.40 It is also concerned about

reports of the Moroccan authorities’ processing extradition requests without conducting a

40 See CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1.

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risk assessment, as required by article 3 of the Convention.41 Nevertheless, in the present case,

the Committee recalls that, for the purposes of article 3 of the Convention, the complainant

must demonstrate that Mr. Al Hasani ran a foreseeable, real and personal risk of being

tortured in the country to which he was being returned. In the light of the above, the

Committee believes that such a risk has not been established. The Committee considers that

the circumstances of the present case do not allow it to conclude that the State party

deliberately failed to comply with the Committee’s request for interim measures.

10.17 The Committee refers to paragraph 38 of its general comment No. 4 (2017), according

to which the burden of proof is upon the complainant, who has to present an arguable case.42

In the light of the above, and in the circumstances of the present case, the Committee

considers that the complainant has not discharged the burden of proof, having failed to

provide sufficient information to establish that the authorities of the State party have treated

her husband in a manner that might be contrary to articles 3 and 22 of the Convention.

11.

In the light of the foregoing, the Committee considers that the information submitted

by the complainant is insufficient to substantiate her claim that the State party has violated

articles 3 and 22 of the Convention or that Mr. Al Hasani would face a foreseeable, present,

personal and real risk of torture if he was deported to Saudi Arabia.

12.

The Committee, acting under article 22 (7) of the Convention, in view of the

information contained in the case file, concludes that the deportation of Mr. Al Hasani to

Saudi Arabia does not constitute a violation by the State party of article 3 of the Convention.

The Committee nevertheless invites the State party to seek ways of monitoring the conditions

under which Mr. Al Hasani is detained in Saudi Arabia, in order to ensure that he is not

subjected to treatment contrary to article 3 of the Convention, and to inform the Committee

of the results of such monitoring.43

41 CAT/C/MAR/CO/4, para. 9.

42 T.M. v. Sweden (CAT/C/68/D/860/2018), para. 12.13; and S.B. v. Cameroon

(CAT/C/75/D/1034/2020), para. 8.6.

43 Ayaz v. Serbia (CAT/C/67/D/857/2017), para. 11.

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Annex

[Original: English]

Joint opinion of Committee members Todd Buchwald, Jorge

Contesse and Peter Vedel Kessing (dissenting)

1.

Respectfully, we find ourselves unable to concur with the Committee’s decision in the

present case.

2.

Pursuant to the Committee’s practice, the complainant is generally responsible for

putting forward an arguable case that there are substantial grounds for believing that he or

she would be in danger of being subjected to torture if extradited. If this is done, the burden

shifts to the State party,1 which – under article 3 (2) of the Convention – is obligated to carry

out an independent and impartial review of the facts and an assessment of the risk, taking

into account all relevant considerations. When such a case is submitted to the Committee, it

becomes the responsibility of the Committee to consider whether the State party has shown

that it has conducted such a review and risk assessment. Failure of the State party to do so

before extraditing the complainant constitutes a violation of its obligations under article 3 of

the Convention.2

3.

In the present case, the complainant has put forward a case that is more than simply

arguable that there would be substantial grounds for believing that Mr. Al Hasani would be

in danger of being subjected to torture, including on the basis of the Committee’s own

concluding observations on the second periodic report of the State of destination. In those

concluding observations, the Committee expressed its deep concern at the numerous reports

that torture and other ill-treatment were commonly practised in prisons and detention centres

of the State of destination.3 The Committee also expressed concern about the insufficient

independence of the Specialized Criminal Court – the Court that had jurisdiction over

Mr. Al Hasani’s case upon his extradition and that eventually sentenced him4 – and about

reports that the judges of that Court had repeatedly refused to act on claims made by

defendants facing terrorism charges who had been subjected to torture or ill-treated during

interrogations for the purpose of compelling a confession.5 The Special Rapporteur on the

promotion and protection of human rights and fundamental freedoms while countering

terrorism has expressed those same concerns.6 In its concluding observations, the Committee

also addressed the issue of corporal punishment, stating that:

1 For example, A.S. v. Sweden (CAT/C/25/D/149/1999), para. 8.6. See also European Court of Human

Rights, Saadi v. Italy, Application No. 37201/06, Judgment, 28 February 2008, para. 129; and Inter-

American Court of Human Rights, Wong Ho Wing v. Peru, Judgment, 30 June 2015, para. 224.

2 Convention against torture and other cruel, inhuman or degrading treatment or punishment, art. 3 (2)

(“For the purpose of determining whether there are such grounds [for believing that a person would

be in danger of being subjected to torture], the competent authorities shall take into account all

relevant considerations including, where applicable, the existence in the State concerned of a

consistent pattern of gross, flagrant or mass violations of human rights”); and general comment No. 4

(2017), para. 27 (“Article 3 (2) of the Convention provides that for the purpose of determining

whether there are grounds for believing that a person would be in danger of being subjected to torture,

if expelled, returned or extradited, the competent authorities shall take into account all relevant

considerations including, where applicable, the existence in the State concerned of a consistent

pattern of gross, flagrant or mass violations of human rights”) and para. 13 (“Each case should be

examined individually, impartially and independently the State party through competent

administrative and/or judicial authorities, in conformity with essential procedural safeguards, notably

the guarantee of a prompt and transparent process, a review of the deportation decision and a

suspensive effect of the appeal”).

3 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 7.

4 Committee’s decision, para. 7.4.

5 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 17.

6 A/HRC/40/52/Add.2, highlighting “the large number of reports regarding unfair trials before the

Specialized Criminal Court, prolonged periods of detention, the use of torture, coerced confessions and

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The Committee is deeply concerned that the State party continues to sentence individuals to

and to impose corporal punishment, including flogging/lashing and amputation of limbs –

practices that are in breach of the Convention. The Committee is concerned that the penalties

provided by law in the State party include these and other forms of corporal punishment,

which amount to torture and cruel, inhuman or degrading treatment or punishment under the

Convention.7

4.

These observations are particularly relevant to the present case because of concerns

that the car theft charges for which Mr. Al Hasani was sought were punishable by corporal

punishment.

5.

The State party did not contest these concerns, and indeed there is no indication that

it even took the human rights situation in the State seeking extradition into account. Nor did

the State party contest or address the concerns that Mr. Al Hasani’s co-defendants were

subjected to torture while being interrogated for what are essentially the same charges of car

theft or that the law of the State seeking extradition: (a) lacks a definition of torture; (b) lacks

clear legislative provisions guaranteeing the absolute and non-derogable prohibition of

torture; and (c) fails to preclude the use of statements obtained through torture as evidence in

trials.8

6.

Meanwhile, the conclusion that Mr. Al Hasani is a person of particular interest to the

State seeking the extradition seems virtually inescapable, particularly in the light of the

absence of a meaningful explanation by the State party of the remarkable events surrounding

his actual transfer. These include the special flight on which Mr. Al Hasani was transported,

arranged for 2.45 a.m. on a Saturday from an airport that was otherwise closed, mere hours

after Mr. Al Hasani had been notified of the decree ordering his transfer, notwithstanding the

pending request for interim measures by which the Committee had requested the State party

not to extradite Mr. Al Hasani while the Committee considered the complaint. They also

include the subsequent absence of information about the treatment of Mr. Al Hasani after he

was convicted by the Specialized Criminal Court in September 2021,9 which is similarly left

unaddressed by the State party.10

7.

To be clear, none of the elements described above definitively established that

Mr. Al Hasani would in fact be subjected to torture. They are clearly sufficient, however, to

the lack of accountability, as well as the failure of Saudi Arabia to provide minimum procedural

safeguards during detention and interrogation, and its judicial practice of admitting coerced confessions

into evidence” (p. 1).

7 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 10.

8 The Committee noted those deficiencies in its concluding observations (CAT/C/SAU/CO/2 and

CAT/C/SAU/CO/2/Corr.1, paras. 5 and 23).

9 See Together for Justice, “The verdict against Osama Al-Hasani confirms his extradition from Morocco

on political grounds”, 7 September 2021, reporting that Mr. Al Hasani was sentenced to four years

imprisonment by the Specialized Criminal Court following “about six months of trial in mysterious

circumstances, following his extradition from Morocco” and that “he was subjected to enforced

disappearance for a long time before being allowed to communicate with the outside world”; and

Human Rights Watch, “Joint statement: Hassan al-Rabea’s extradition constitutes a grave violation of

Morocco’s international obligations”, 13 February 2023, recalling that “the Specialised Criminal Court,

known for its politicized and grossly unfair trials, sentenced al-Hasani to four years’ imprisonment”.

10 It is also worth noting that a careful look at paragraph 6.6 of the Committee’s decision suggests that the

two provisions under which the State party says Mr. Al Hasani’s case was assessed – article 41 of the

Riyadh Arab Convention on Judicial Cooperation and article 721 of the Code of Criminal Procedure of

Morocco – do not in fact provide for the protection from the risk of torture to which a person is entitled

under article 3 of the Convention. Article 41 of the Riyadh Arab Convention prohibits extradition if the

crime of which a person is accused is “of a political nature”, whereas article 3 of the Convention requires

a State party to protect persons at risk of torture from extradition to another State regardless of whether

the crime that the person is accused of committing is political or non-political. Similarly, article 721 of

the Code of Criminal Procedure prohibits extradition for the purpose of prosecuting or punishing the

person on the grounds of race, religion, nationality or public opinion, whereas article 3 of the

Convention requires States parties to protect persons from the risk of torture for any reason, not only if

the risk of torture is attributable to race, religion, nationality or public opinion. Thus, even on the face

of the provisions that the State party argues were the basis for its decision, the protections required

under article 3 of the Convention would not be fully safeguarded.

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require the State party to put forward a reasoned explanation of the basis upon which its

authorities rejected the contention. Yet no such explanation is provided. On the contrary, the

decision simply lists various procedural safeguards that the State party says were afforded to

Mr. Al Hasani, such as the fact that he was permitted to be assisted by counsel, that he was

provided with medical care, that he received visits from consular authorities and from a

delegation of the National Human Rights Council, and that the extradition was carried out in

accordance with a mutual legal assistance treaty. Nowhere in the decision, however, does the

State party indicate that it even asserted that Mr. Al Hasani would not face the requisite risk

of torture, much less set forth the reasoning upon which any such assertion would be based.

Nor does the decision include an indication that the authorities ever carried out an assessment

of the risk, as they were explicitly required to do under the Convention.

8.

If the State party had refrained from extraditing Mr. Al Hasani, pursuant to the

Committee’s request for interim measures, while consideration of the case was pending, a

finding of a violation would not have been necessary. Rather, it would have been appropriate

for the Committee to decide that the State party should reassess its decision to extradite

Mr. Al Hasani in the light of the considerations set out above, making clear the basis for its

conclusion that Mr. Al Hasani would not face the requisite risk of torture upon being

extradited. It would not then have been necessary for the Committee to prejudge what the

outcome of that reassessment should be, so that even a decision to go forward with the

extradition would not necessarily have ended up constituting a violation. Regrettably, such a

reassessment is no longer possible as the transfer proceeded, notwithstanding the

Committee’s request for interim measures. At this point, then, the Committee’s choice is

simply to find whether the extradition did or did not constitute a violation. It is our view that

the Committee should have concluded that, in the absence of further consideration by the

State party that took account of the relevant factors described above and a reasoned

explanation of its conclusion, the extradition of Mr. Al Hasani did in fact constitute a

violation. For these reasons, we dissent from the Committee’s decision.