Opinion; Subjects: SAUDI ARABIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.12-11157
Human Rights Council
Working Group on Arbitrary Detentio
Opinions adopted by the Working Group on Arbitrary
Detention at its sixtieth session, 2-6 May 2011
No. 10/2011 (Saudi Arabia)
Communication addressed to the Government on 5 January 2011
Concerning: Bachr b. Fahd b. Al-Bachr
The State is not a party to the International Covenant on Civil and Political Rights.
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. The mandate of the Working Group was clarified and
extended in Commission resolution 1997/50. The Human Rights Council assumed the
mandate in its decision No. 2006/102. The mandate was extended for a further three-year
period in Council resolution 15/18 of 30 September 2010.
2.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his
sentence or despite an amnesty law applicable to him) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III;
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth; national, ethnic or social origin; language;
United Nations
A/HRC/WGAD/2011/10
General Assembly
Distr. General
27 February 2012
Original: English
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religion; economic condition; political or other opinion; gender; sexual orientation;
disability or other status, and which aims towards or can result in ignoring the equality of
human rights (category V).
Submissions
Communication from the Source
3.
The case summarized hereinafter was reported by the source to the Working Group
on Arbitrary Detention as follows: Bachr b. Fahd b. Safrane Al-Bachr (hereinafter Mr. Al-
Bachr), born in 1960, aged 50, a Saudi national, usually residing with his family in Riyadh,
Saudi Arabia, is a professor of Religious Science at the University of Al-Imam Ahmed b.
Saud in Riyadh.
4.
It is reported that, on the evening of 15 March 2007, Mr. Al-Bachr was arrested at
his residence by about 15 officers of the Saudi Investigative Police (Al-Mabahith Al-
Amma) in plain clothes and arriving in civilian cars. Mr. Al-Bachr was not presented with a
warrant or informed of the reasons for his arrest. According to the information received,
Mr. Al-Bachr was taken to an undisclosed location. The source reports that, despite
numerous attempts to obtain information regarding Mr. Al-Bachr’s fate and whereabouts
from the Saudi authorities, his family was left with no news for the following nine months.
5.
According to the source, Mr. Al-Bachr was allowed to receive a single visit from his
family, in December 2007. At that time, he was detained in Al-Alisha detention centre,
which was entirely controlled by Al-Mabahith. According to the information received, Mr.
Al-Bachr was allegedly subjected to ill-treatment and prolonged solitary confinement. After
the visit in December 2007, his family had no further access to Mr. Al-Bachr. According to
the source, Mr. Al-Bachr’s family learned that his detention conditions had further
deteriorated. The source alleges that Mr. Al-Bachr was detained in isolation and then
transferred to a freezing underground cell. Reportedly, Mr. Al-Bachr was kept handcuffed
and blindfolded over long periods of time. Despite Mr. Al-Bachr’s alarming health
condition, it is reported that he has never received appropriate medical treatment.
6.
The source further reports that Mr. Al-Bachr has recently been transferred to Al-
Hayer prison near Riyadh. Mr. Al-Bachr receives monthly visits from his family, but he is
not allowed access to legal counsel, nor has he been brought before a judge since his arrest.
The source reports that Mr. Al-Bachr has remained for three years and nine months without
being charged or sentenced and without knowing when he will be released.
7.
The source then proceeds to cite relevant domestic law, which in their opinion, has
been contravened, including article 36 of the Saudi Basic Law of Governance, “[t]he State
shall provide security for all citizens and residents on its territories. No one may be
confined, arrested or imprisoned without reference to the Law”; article 35 of the Saudi Law
of Criminal Procedure (Royal Decree No. M/39), which provides that: “no person shall be
arrested or detained except on the basis of order from the competent authority”. This article
also specifies that “(…) any such person (…) shall also be advised of the reasons of his
detention (…)”. Article 104 of the same law specifies that a detainee is to be admitted “into
[a] detention centre after [being] explain[ed] the offense with which he is charged and the
basis thereof”, which has not happened in the case of Mr. Al-Bachr. It is reported that Mr.
Al-Bachr has never been informed of the charges pending against him.
8.
The source then states that article 3 of the Law of Criminal Procedure stipulates that
“[n]o penal punishment shall be imposed on any person except in connection with a
forbidden and punishable act (…) and after he has been convicted pursuant to a final
judgment rendered after a trial conducted in accordance with Shari’ah principles”. In
addition, article 2 of the Law of Criminal Procedure declares that “detention (…) shall be
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for the period prescribed by the competent authority”. According to the source, Mr. Al-
Bachr has not been given a trial nor has he been informed about the period of his detention.
9.
The source further refers to article 114 of the Royal Decree, which provides that if
the accused is to be detained in pre-trial detention, it is to last a maximum of five days,
renewable up to a total of six months. Mr. Al-Bachr has been detained for three years and
nine months. Hence, the source indicates that in accordance with Article 114, Mr. Al-Bachr
should be “directly transferred to the competent court or (…) released”.
10.
Article 4 of the Saudi Law of Criminal Procedure provides for “the right to seek the
assistance of a lawyer or a representative to defend him during the investigation and trial
stages”. According to the source, Mr. Al-Bachr has not had the possibility to mandate a
lawyer for his defence and has not had access to legal counsel.
11.
The source further reports that the reasons for Mr. Al-Bachr’s arrest and continued
detention are related to the fact that Mr. Al-Bachr has often spoken freely and publicly
about his criticism of government policies within the academic framework of his university
teachings. Mr. Al-Bachr also ran a website, which is now blocked, where he used to
peacefully express his opinions.
Response from the Government
12.
The Working Group forwarded a communication to the Government on 5 January
2011 and regrets that no response was provided within the stipulated 90-day period. Nor
has the Government requested an extension from the Working Group in accordance with
paragraphs 15 and 16 of its methods of work.
Discussion
13.
Despite the lack of response from the Government and on the basis of information
made available to it, the Working Group considers itself in a position to render an opinion
on the arrest and detention of Mr. Al-Bachr in accordance with paragraph 16 of its methods
of work.
14.
The facts presented by the source and not challenged by the Government indicate
serious violations of Mr. Al-Bachr’s basic human rights. These include, inter alia, arrest
without warrant and detention for almost four years, without being charged or brought
before a judge.
15.
Article 9 of the Universal Declaration of Human Rights provides that “[n]o one shall
be subjected to arbitrary arrest, detention or exile”. Both the Human Rights Committee and
the former Commission on Human Rights have clarified that the fundamental aspect of this
right consists in the possibility of contesting the legality of one’s detention. Resolution
1992/35 adopted by the former Human Rights Commission on 28 February 1992 called on
all States to establish a procedure such as habeas corpus in order for all persons deprived of
their liberty to institute proceedings before a court so that the court may decide without
delay the lawfulness of his or her detention and order his or her release if detention is found
to be unlawful. It transpires from the information available that Mr. Al-Bachr has not only
been unable to contest the legality before a competent tribunal, but continues to be detained
indefinitely.
16.
Similarly, Mr. Al-Bachr has not benefited from any legal procedure, access to a
lawyer or legal assistance in violation of article 10 of the Universal Declaration of Human
Rights, Principle 1 of the Basic Principles on the Role of Lawyers and Principle 18 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
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17.
There are also allegations of severe ill-treatment and adverse conditions of detention
including periods of solitary confinement resulting in the deteriorating health condition of
Mr. Al-Bachr; lack of adequate legal assistance, lack of due process and ongoing detention
without knowledge of the reasons therefor. None of these allegations is contested by the
Government.
18.
The Working Group notes with concern that the continued arrest and detention of
Mr. Al-Bachr without charges, legal process or trial and access to legal counsel is not an
isolated case. As demonstrated in earlier opinions rendered by the Working Group
including Opinions No. 36/2008; No. 37/2008; No. 22/2008, No. 21/2009 and No. 2/2011,
a significant number of persons were arrested and detained without warrants, without
prompt appearance before a magistrate, access to legal counsel and indeed a trial. In the
majority of these cases, the detained persons, such as Mr. Al-Bachr, had been arrested for
the peaceful expression of their opinions; in others on vaguely articulated security-related
issues.
19.
The Working Group also takes note of the fact that for nine months, Mr. Al-Bachr’s
family was unaware of his whereabouts. This, combined with cruel, inhuman and degrading
treatment during detention and his resulting poor health constitutes a very difficult situation
for both Mr. Al-Bachr and his family and adds yet another layer of deprivation and denial
of basic human rights under domestic law as well as international human rights law. In
particular, the Working Group brings to the attention of the Kingdom of Saudi Arabia its
legal obligations as a State party to the United Nations Convention against Torture.
20.
Although the Government of the Kingdom of Saudi Arabia has not offered a
response to the allegations set forth by the source, from the nature of the facts supplied to
the Working Group, the reason for Mr. Al-Bachr’s arrest and continuous detention appears
to be directly linked with his exercise of the fundamental right of expression of opinion. To
this end his website, on which he called for reform in the Kingdom, has been blocked.
Disposition
21.
In light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mr. Al-Bachr is arbitrary, falling under categories I, II
and III of the Working Group, being without legal basis, and in violation of articles 9, 10
and 19 of the Universal Declaration of Human Rights.
22.
Consequent upon the opinion rendered, the Working Group requests the
Government of Saudi Arabia to release Mr. Al-Bachr forthwith and bring his situation into
conformity with the standards and principles set forth in the Universal Declaration of
Human Rights.
23.
The Working Group requests the Government of Saudi Arabia to provide adequate
and appropriate reparation to Mr. Al-Bachr and his family.
24.
The Working Group invites the Government of Saudi Arabia to ratify the
International Covenant on Civil and Political Rights.
[Adopted on 4 May 2011]