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.12-11555
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. 43/2011 (Saudi Arabia)
Communication addressed to the Government on 16 February 2011
Concerning: Mohamed bin Abdullah bin Ali Al-Abdulkareem
The State is a not 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 in 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/2011/43
General Assembly
Distr. General
29 February 2012
Original: English
A/HRC/WGAD/2011/43
2
(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. Mohamed bin Abdullah bin Ali Al-Abdulkareem, (hereinafter Mr. Al-
Abdulkareem), aged 39, is a law professor at the University Mohamed ibn Saoud, Riyadh.
Mr. Al-Abdulkareem is also a member of an association on civil and political rights and the
Arab Organization for Liberties and Good Governance as well as chief editor of the Journal
of Congress of the Nation.
4.
It is reported that Mr. Al-Abdulkareem was arrested from his home on 5 December
2010 by agents of the general intelligence directorate. According to the information
received, Mr. Al-Abdulkareem was not presented with a judicial warrant, nor was he
informed of the reasons justifying his arrest.
5.
Mr. Al-Abdulkareem was detained at Al Hayr prison, near Riyadh. It is reported that
Mr. Al-Abdulkareem was able to contact his wife on two occasions via telephone since his
arrest, and thus could inform her of his whereabouts.
6.
According to the information received, Mr. Al-Abdulkareem was neither presented
before a judge nor was he informed of the reasons justifying his detention or its duration.
The source argues that these omissions violate international human rights law and domestic
Saudi law, in particular article 36 of the Saudi Basic Law of Governance, article 35 of the
Saudi Law on Criminal Procedure (Royal Decree No. M/39) and article 2 of the Law of
Criminal Procedure.
7.
It is further reported that, on 8 December 2010, a group of lawyers defending Mr.
Al-Abdulkareem presented a request in his name calling for his fundamental rights
guaranteed by national law to be respected, namely to ensure provisional release according
to the Ministerial Decree No. 1900 and article 120 of the Saudi Law on Criminal Procedure,
to allow access of legal counsel to Mr. Al-Abdulkareem in conformity with Article 39 of
the Saudi Law on Criminal Procedure, and to ensure that Mr. Al-Abdulkareem was
presented before a competent judicial authority in accordance with Article 14 of the Saudi
Law on Criminal Procedure. It is reported that Mr. Al-Abdulkareem’s lawyers did not
receive any response from the authorities nor were they allowed to visit Mr. Al-
Abdulkareem. Mr. Al-Abdulkareem was unable to contest the legality of his arrest and
detention.
8.
The source contends that Mr. Al-Abdulkareem’s deprivation of liberty is a direct
consequence of his pacific exercise of the right to freedom of opinion and expression as
guaranteed under article 19 of the Universal Declaration of Human Rights. According to
the information received, Mr. Al-Abdulkareem’s arrest and detention is linked to the fact
that he had published an article on his Facebook page which addressed the problem of
succession and mechanisms for transfer of power in Saudi Arabia. It is reported that the
same article is available on many Internet websites and generated debate in Saudi civil
society concerning the organization of power in the Kingdom.
Response from the Government
9.
The Working Group transmitted the above allegations to the Government of Saudi
Arabia requesting that it provide, in its reply, detailed information about the current
A/HRC/WGAD/2011/43
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situation of Mr. Al-Abdulkareem and to clarify the legal provisions justifying his continued
detention.
10.
It is regretted that the Working Group had not received a response from the
Government within the requested delays. The Working Group would have welcomed the
cooperation of the Government of Saudi Arabia.
11.
According to information received, Mr. Al-Abdulkareem was released from
detention on the 15 February 2011. However, bearing in mind the consistent pattern of
arrests and detention, in particular of human rights advocates and activists, the Working
Group has decided in accordance with paragraph 17(a) to render an opinion on the arrest
and detention of Mr. Al-Abdulkareem.
Discussion
12.
The Working Group, on the basis of the information submitted to it, notes that Mr.
Al-Abdulkareem, arrested on 5 December 2010, was at no point informed of any reasons
justifying his detention nor were any formal charges brought against him. He was not
presented before a judge nor had he recourse to legal counsel. According to the information
received, no legal basis has thus been invoked justifying Mr. Al-Abdulkareem’s arrest and
detention. The only reason behind this action of the authorities was his membership in an
association on civil and political rights and in the Arab Organization for Liberties and Good
Governance, as well as his being chief editor of the Journal of Congress of the Nation.
13.
The Working Group invites the attention of the Government of the Kingdom of
Saudi Arabia to the fundamental principles set forth in the Declaration on the Right and
Responsibility of Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms, and in particular
articles 1 and 2 which state that “everyone has the right individually or in association with
others, to promote and to strive for the protection and realization of human rights and
fundamental freedoms at the national and international levels” and that “each State has a
prime responsibility and duty to protect, promote and implement all human rights and
fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all
conditions necessary in the social, economic, political and other fields, as well as the legal
guarantees required to ensure that all persons under its jurisdiction, individually and in
association with others, are able to enjoy all those rights and freedoms in practice”.
14.
Moreover, the Working Group wishes to reiterate the principle, enunciated in
Human Rights Council resolution 12/16, which calls on States, while noting that the right to
freedom of opinion and expression carries with it special duties and responsibilities, to
refrain from imposing restrictions, including on discussion of Government policies and
political debate; reporting on human rights, Government activities and corruption in
Government; engaging in election campaigns, peaceful demonstrations or political
activities, including for peace or democracy; and expression of opinion and dissent, religion
or belief, including by persons belonging to minorities or vulnerable groups.
15.
The Working Group notes with concern a consistent pattern of arrest and detention
of persons exercising their basic human rights, in particular their right to freedom of
opinion, expression and association (see, for instance, opinions No. 22/2008, No. 36/2008,
No. 37/2008, No. 2/2011, No. 10/2011 and No. 30/2011 of the Working Group). In the
present case, it is manifest that Mr. Al-Abdulkareem’s deprivation of liberty was solely
linked to his opinions and activities as part of Saudi civil society organization.
A/HRC/WGAD/2011/43
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16.
The Working Group reiterates that the prohibition of arbitrary detention is part of
customary international law. It has been authoritatively recognized as a peremptory norm of
international law or jus cogens,1 which this Working Group follows in its opinions. Also of
assistance is the judgment of the International Court of Justice in Ahmadou Sadio Diallo.2
The constant jurisprudence of the rulings contained in the opinions of this Working Group,
and of the other United Nations special-procedures mandate holders, dealing with full range
of human rights treaties and customary international law, is yet another source.
Disposition
17.
In the light of the foregoing, the Working Group renders the following opinion:
The continued detention of Mr. Al-Abdulkareem 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.
18.
Consequent upon the opinion rendered and in view of the adverse effect of this
wrongful arrest and detention on Mr. Al-Abdulkareem and his family, the Working Group
requests the Government of Saudi Arabia to ensure appropriate reparation.
19.
The Working Group urges and invites the Government of Saudi Arabia to ratify the
International Covenant on Civil and Political Rights.
[Adopted on 2 September 2011]
1 See Human Rights Committee, general comment No. 29 on states of emergency
(CCPR/C/21/Rev.1/Add.11),, para. 11, 31 August 2000.
2 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, which the
Working Group adopted (see International Court of Justice, Ahmadou Sadio Diallo (Republic of
Guinea v. Democratic Republic of the Congo), Merits, Judgment of 30 November 2010, ICJ Reports
2010, para. 79; Separate Opinion of Judge Cançado Trindade, pp. 26-37, paras. 107-142.