A/HRC/WGAD/2011/30

GE.12-11332

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-first session, 29 August–2 September

2011

No. 30/2011 (Saudi Arabia)

Communication addressed to the Government on 8 February 2011

Concerning: Saleh bin Awad bin Saleh Al-Hweiti

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 former 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 by its decision 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);

United Nations

A/HRC/WGAD/2011/30

General Assembly

Distr. General

28 February 2012

Original: English

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(e)

When the deprivation of liberty constitutes a violation of the international

law for reasons of discrimination based on birth; national, ethnic or social origin; language;

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.

Mr. Al-Hweiti, born in 1964 in Riyadh, Saudi Arabia, is a stateless person of

Bedouin origin (known as “Bidoon” in Saudi Arabia), notwithstanding repeated requests to

obtain Saudi citizenship. Mr. Al-Hweiti is a member of the Reformist movement, which

calls for peaceful constitutional reforms in Saudi Arabia. It is reported that under the alias

“Akhu Saad”, Mr. Al-Hweiti published numerous poems on the situation of the Bidoon and

the alleged injustice they suffer at the hands of the Saudi authorities, on the grounds of their

lack of legal status.

4.

The source reported that on 30 April 2003, following a recital of some of his poems

on a radio station close to the Reformist movement, Mr. Al-Hweiti was arrested at his

brother’s residence in Riyadh by plainclothes officers of the Intelligence and Security

Agency of the Saudi Ministry of the Interior, Al-Mabahith. According to the information

received, it was not until July 2003 that Mr. Al-Hweiti was allowed to receive a visit from

his family for the first time. On this occasion, Mr. Al-Hweiti informed his family that

during a rushed trial, he had been sentenced to 11 months’ imprisonment for defamation of

Governors and other Government officials. The source reports that in response to an urgent

appeal from the Office of the High Commissioner for Human Rights, the Government

stated that Mr. Al-Hweiti was detained “on the basis of a security-related charge (relevant

to terrorist activities),” without giving any precision about the legal basis underlying his

detention or the offence allegedly committed. The source deduces that these charges were

fabricated and indicate lack of guarantees to a fair trial. Reportedly, Mr. Al-Hweiti has

never had access to legal counsel and the hearings were held behind closed doors. After the

family’s visit, Mr. Al-Hweiti was transferred to Al-Hayr State Security Prison where he

remained until 23 April 2007.

5.

On 23 April 2007, nearly four years after the end of his sentence, Mr. Al-Hweiti was

released. According to the information received, Mr. Al-Hweiti requested identity

documents in order to be able to cross the country and join his family in Riyadh. Mr. Al-

Hweiti was told to stay in the area of Tabuk and wait until further notice. On 29 April 2007,

Mr. Al-Hweiti was summoned by the local branch of Al-Mabahith. When he did not return

home, his family sought information about his fate and whereabouts. The family was told

that Mr. Al-Hweiti had been re-arrested and detained at Taif detention centre in the

Province of Mecca. According to the information received, it was not until one month after

his re-arrest that Mr. Al-Hweiti’s family received a call from him. Allegedly, Mr. Al-Hweiti

was not allowed to speak freely or to inform his family about his situation and conditions of

detention. According to the information received, he was allowed a second call to his

family on 31 January 2008. He informed his family that he had been subject to alleged acts

of torture and had been kept in solitary confinement since the day of his re-arrest.

Reportedly, Mr. Al-Hweiti has not received adequate medical treatment. During a

subsequent call in early June 2008, Mr. Al-Hweiti complained about alleged skull fractures

and a broken jaw. At this point, Mr. Al-Hweiti was being detained in Jeddah State Security

Prison. His family’s requests for his transfer to Riyadh were successively rejected.

Moreover, according to the source, his family’s right to State subsidies was withdrawn,

thereby causing them financial hardship.

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6.

The source reports that on 1 February 2009, Mr. Al-Hweiti was woken up and taken

to the Direction of Civil Affairs, where he was given identity documents. On 25 April 2009,

Mr. Al-Hweiti was transferred to Riyadh. On 25 May 2009, that is two years after his

second arrest, Mr. Al-Hweiti was brought to the first hearing for his second trial. A second

hearing was adjourned at the request of the Prosecutor, and consequently, Mr. Al-Hweiti

was returned to the detention centre in Jeddah. It is reported that in September 2009, Mr.

Al-Hweiti was sentenced to five years’ imprisonment, to be counted from the end of his

first sentence, that is, 30 March 2004. As such, Mr. Al-Hweiti’s second sentence should

have terminated on 30 March 2009.

7.

Towards the end of 2009, Mr. Al-Hweiti’s family learned that he had been

transferred to Al-Hayr Prison, where he allegedly remained in solitary confinement. Despite

numerous calls, the family was not allowed to visit him until March 2010. According to the

information received, Mr. Al-Hweiti complained of the lack of medical care, overcrowded

cells, the fact that he was not allowed outdoors and that the facilities were badly aerated,

leading to conditions favourable to the spread of diseases among the prisoners. In mid-

August 2010, Mr. Al-Hweiti was again transferred to Jeddah and taken to Taif detention

centre shortly thereafter.

8.

On 20 August 2010, Mr. Al-Hweiti was brought before a committee which

interrogated him about how he had obtained his identity documents. Mr. Al-Hweiti was

asked to disclose the names of individuals who had helped him. Reportedly, these

interrogation sessions continued for several months.

9. According to the information received, Mr. Al-Hweiti has been convicted twice

following in camera hearings for alleged violation of articles 9 and 10 of the Universal

Declaration of Human Rights. According to the source, Mr. Al-Hweiti has never had access

to legal counsel, neither during his first detention, nor since his re-arrest in April 2007.

10.

The source submits that Mr. Al-Hweiti’s first arrest occurred following the

broadcast of some of his poems on a radio station closely linked to the Reformist

movement, which referred to the pseudonym under which the poems had been published.

The source contends that Mr. Al-Hweiti’s deprivation of liberty is a direct consequence of

his pacific exercise of the right to freedom of opinion and expression, as guaranteed in

article 19 of the Universal Declaration of Human Rights. According to the source, Mr. Al-

Hweiti has been unable to contest the legality of his detention before a competent tribunal.

Moreover, Mr. Al-Hweiti has at no point been given the possibility to appeal the sentences

pronounced against him.

Response from the Government

11.

The Working Group transmitted the above allegations to the Government of Saudi

Arabia, requesting that it provide, in its reply, detailed information about Mr. Al-Hweiti’s

current situation and clarification about the legal provisions justifying his continued

detention.

12.

The Working Group regrets that it did not received a response from the Government;

it would have welcomed the Government’s cooperation.

Discussion

13.

In accordance with its revised methods of work, the Working Group is in a position

to render an opinion on the basis of the submissions available before it.

14.

Based on the information presented, which has not been refuted by the Government,

the various and varying periods of arrest and detention of Mr. Al-Hweiti raise a number of

important issues for discussion by the Working Group. Arrest and detention on different

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occasions without being informed of the reasons thereof, delayed and hurried summary

court proceedings leading to periods of imprisonment without recourse to legal counsel,

frequent movement between detention facilities away from place of family residence are

matters of serious concern in the present case. There are also allegations of severe detention

conditions and ill-treatment, lack of adequate legal assistance and due process, and most

importantly, incarceration for expression of opinion and association. Finally, as stateless

persons with nomadic characteristics, Mr. Al-Hweiti and his family members are a

vulnerable group requiring particular protection.

15.

Although the Government of Saudi Arabia has not responded to the allegations set

forth by the source, based on the information available to the Working Group, a discernible

pattern emerges from the number of cases in Saudi Arabia brought before the Working

Group. For example, opinions No. 36/2008, No. 37/2008, No. 22/2008, No. 21/2009, No.

2/2011, No. 10/2011, No. 11/2011, No. 17/2011, No. 18/2011 and No. 19/2011 of the

Working Group all deal with persons who had been arrested and detained without warrants,

timely presentation before a magistrate, access to legal counsel or indeed a trial. In the

majority of these cases, the detained persons had been arrested following peaceful

expression of opinion; in others, on vague security-related issues. It is therefore pertinent to

mention that Mr. Al-Hweiti’s case follows the same pattern in which basic rights have not

been respected, including those recognized in articles 9 and 10 of the Universal Declaration

of Human Rights.

16.

Based on the information provided by the source, it appears that the officers who

arrested Mr. Al-Hweiti, used his “pen-name”, leading to the inference that his arrest and

detention were due to his exercise of the right to freedom of opinion and the call for

peaceful constitutional reform through his poetry.

17.

It also appears that in parallel with his continued detention, Mr. Al-Hweiti’s

“punishment” has been further compounded by the withdrawal of financial support to his

family by the authorities. Although this action is not directly related to the determination of

arbitrariness of Mr. Al-Hweiti’s detention, it serves to aggravate the psychological and

emotional constraints under which Mr. Al-Hweiti remains detained and is therefore relevant

to note. The Working Group notes with grave concern the lack of transparency and due

process of the serial trials of Mr. Al-Hweiti.

18.

The Working Group emphasizes that customary international law provides for the

prohibition of arbitrary detention. It has been authoritatively recognized as a jus cogens or

peremptory norm of international law (see the Human Rights Committee’s general

comment No. 29 (2001) on states of emergency) to which the Working Group refers in its

opinions. The judgment of the International Court of Justice in the case concerning

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) of 30

November 2010 and, in particular, the discussions by Judge Cançado Trindade on

arbitrariness in customary international law* have been adopted by the Working Group. The

body of jurisprudence of the rulings contained in the opinions of the Working Group and of

the other United Nations special procedures mandate holders also constitute a source of

reference for the Working Group’s opinions.

Disposition

19.

In the light of the foregoing, the Working Group renders the following opinion:

* See International Court of Justice, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic

Republic of the Congo), Judgment of 30 November 2010, para. 79; also the Separate Opinion of

Judge Cançado Trindade, paras. 107-142.

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The deprivation of liberty of Mr. Al-Hweiti for multiple and continued periods is

arbitrary, being without legal basis and in violation of articles 9, 10 and 19 of the

Universal Declaration of Human Rights, and falling within categories I, II and III of

the categories applicable to the consideration of the cases submitted to the Working

Group.

20.

Consequent upon the opinion rendered, the Working Group requests the

Government of Saudi Arabia to release Mr. Al-Hweiti forthwith, and to bring his situation

into conformity with the standards and principles set forth in the Universal Declaration of

Human Rights.

21.

In view of the adverse effect of this wrongful arrest and detention, the Working

Group requests the Government of Saudi Arabia to ensure that appropriate reparation is

provided to Mr. Al-Hweiti and his family.

22.

In view of the alleged ill-treatment of Mr. Al-Hweiti during his ongoing detention,

the Working Group forwards this case to the attention of the Special Rapporteur on torture

and other cruel, inhuman or degrading treatment or punishment.

23.

The Working Group urges and invites the Government of Saudi Arabia to ratify the

International Covenant on Civil and Political Rights.

[Adopted on 30 August 2011]