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
CAT/C/80/D/1062/2021
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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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3
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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9
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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11
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.