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)
United Nations
A/HRC/WGAD/2012/22
General Assembly
Distr.: General
23 November 2012
Original: English
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-fourth session, 27–31 August 2012
No. 22/2012 (Saudi Arabia)
Communication addressed to the Government on 23 March 2012
Concerning Rabie Mohamed Abdelmaksoud, Jumaa Abdallah Abusraie, Awad Al
Sayed Zaky Abu Yahya, Sameh Anwar Ahmed Al Byasi, Abu Al Aineen Abdallah
Mohamed Esaa, Youssef Ashmawy, Ahmed Mohamed Al Said Al Hassan, Khaled
Mohamed Moussa Omar Hendom, Abdullah Mamdouh Zaki Demerdash, Mustafa
Ahmed Ahmed El Baradei, Hassan Anwar Hassan Ibrahim, Abdul Rahman
Mahmoud Ibrahim Zeid
The Government did not reply to the communication.
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, which extended and clarified the Working
Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the
mandate in its decision 2006/102 and extended it for a three-year period in its resolution
15/18 of 30 September 2010. In accordance with its methods of work (A/HRC/16/47,
annex, and Corr.1), the Working Group transmitted the above-mentioned communication to
the Government.
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 or
her sentence or despite an amnesty law applicable to the detainee) (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);
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(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;
religion; economic condition; political or other opinion; gender; sexual orientation; or
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 cases summarized hereafter have been reported to the Working Group on
Arbitrary Detention as follows.
4.
Rabie Mohamed Abdelmaksoud, an Egyptian national, born in 1973 in Dakahlia
governorate, Egypt, usually residing in Mecca, is a baker.
5.
Mr. Abdelmaksoud was arrested on 7 April 2010 and placed in detention in Duba
prison for the first three months, before being transferred to Tabuk prison on 5 July 2010.
After having been transferred to Tabuk prison, Mr. Abdelmaksoud was accused of being in
possession of unlicensed medication. To date, Mr. Abdelmaksoud has not been tried. Mr.
Abdelmaksoud has been able to contact his family, whom are in a critical situation as he is
the sole breadwinner.
6.
Jumaa Abdallah Abusraie, an Egyptian national born in 1973, married with three
children, works as a car mechanic in Saudi Arabia. He usually resides at the Al Kawafil’s
company headquarters in Mecca.
7.
Mr. Abusraie was arrested on 29 May 2010 and to date has not officially been
charged or brought before a judge. Mr. Abusraie was first detained in Duba prison and
transferred to Tabuk prison on 24 July 2010. His detention is allegedly linked to being in
possession of medication banned in Saudi Arabia.
8.
Mr. Awad Al Sayed Zaky Abu Yahya, born in 1982, usually residing in Gharbia
governorate, Egypt, works as a carpenter in Saudi Arabia.
9.
He was arrested on 6 April 2010 and placed in detention in Duba prison. Three
months later, Mr. Yahya was transferred to Tabuk prison. Since the date of his arrest, he
has not been charged or brought to trial. Since March 2011, contact with his family has
been cut off. His detention is allegedly linked to being in possession of medication banned
in Saudi Arabia.
10.
Mr. Sameh Anwar Ahmed Al Byasi, born in 1977, married with one child, usually
residing in Dakahlia governorate, Egypt, works as a carpenter at the Bin Laden Company.
11.
On 2 September 2010, Mr. Al Byasi was arrested because he was allegedly carrying
40 illicit pills to Saudi Arabia. He was detained for three months in Duba prison before
being transferred to Tabuk prison where he remains. To date, Mr. Al Byasi has not been
officially charged or brought before a judge.
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12.
Abu Al Aineen Abdallah Mohamed Esaa, born in 1973, married and father of three
children, usually residing in Gharbia governorate, Egypt, works as a doctor.
13.
Mr. Esaa was arrested on 5 August 2010. He was found in possession of illicit
medication that was allegedly for his personal use. Mr. Esaa suffers from herniated
(slipped) disks, torn ligaments and damaged nerves on his knees. Mr. Esaa was taken to
Duba prison. On 25 September 2010, he was transferred to the Tabuk Province General
Prison. While in detention, Mr. Esaa was allegedly examined by a doctor who diagnosed
him with the same health problems and gave him the same medication for which he was
reportedly arrested. Since his arrest, Mr. Esaa has not been brought before a judge.
14.
Youssef Ashmawy, born in 1985 and usually residing in Giza, Egypt, works as a
computer programmer and designer.
15.
On 24 August 2008, Mr. Ashmawy was heading toward the Riyadh Traffic
Department to obtain his driving licence when he was arrested by agents of the General
Intelligence Directorate. At the time of his arrest he was allegedly trying to enter a zone
restricted to traffic. He was placed in detention in Riyadh under the authority of the General
Intelligence Presidency, where he was allegedly subjected to torture and other ill-treatment.
On 26 December 2008, he was transferred to Abha prison where he spent a year, including
six months in solitary confinement. Subsequently, Mr. Ashmawy was taken to the Al Hayr
State Security detention centre, where he remains. He was kept incommunicado for seven
months at Al Hayr prison and also spent long periods in solitary confinement.
16.
To date, Mr. Ashmawy has not been officially charged or brought before a judge. On
24 September 2009, a complaint was filed on his behalf before the Diwan al Madhalim
Administrative Court.
17.
Ahmed Mohamed Al Said Al Hassan, born in Egypt in 1979, married and father of
four children, usually residing in Hafr Al-Batin, Saudi Arabia, works as an accountant.
18.
On 7 June 2009, Mr. Al Hassan was arrested in Hafr Al-Batin, in the Dammam
region, at his home by agents of the General Intelligence Directorate, who did not present
any arrest warrant and who were wearing civilian uniforms. The agents searched his house
and then took Mr. Al Hassan to the Dammam Security Prison where he allegedly remains
under the authority of the General Intelligence service. Mr. Al Hassan was kept
incommunicado. He has not been charged since his arrest and no investigation has been
opened against him.
19.
Khaled Mohamed Moussa Omar Hendom born in 1971, married and father of four
children, usually residing in Cairo, Egypt, works at the Hajj and Umrah office in Saudi
Arabia.
20.
On 10 November 2004, Mr. Hendom was arrested in Riyadh, in the Al Batha area,
by General Intelligence agents. The arrest took place at his workplace after which his house
was searched. Following his arrest, Mr. Hendom was kept incommunicado detention from
10 November 2004 to 2 November 2005, at the General Intelligence headquarters in
Riyadh. During this time he was allegedly tortured and ill-treated. He was then transferred
to Alisha prison in Riyadh where he spent another three years, before being transferred to a
prison in Abha, where he allegedly remains. Reportedly, Mr. Hendom has been detained for
seven years without being officially charged or brought before a judge.
21.
Abdullah Mamdouh Zaki Demerdash, born in 1982, married and usually residing in
Cairo, Egypt, works for the Chambler Gear Company in Khobar.
22.
Mr. Demerdash was arrested on 3 June 2008 in Dammam at his office by General
Intelligence agents. His house was searched and he was taken to Dammam Security Prison
where he remains under the authority of the General Intelligence service. Mr. Demerdash is
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allegedly not allowed visits from his family more than once a year. To date, Mr. Demerdash
has not officially been charged or brought before a judge.
23.
Mustafa Ahmed Ahmed El Baradei, usually residing in Gharbia governorate, Egypt,
works at the Mawasem library in Abha, Saudi Arabia.
24.
On 27 June 2009, Mr. El Baradei was arrested at his office by agents of the General
Intelligence service wearing civilian clothes. It is reported that Mr. El Baradei was not
presented with any arrest warrant. He was taken to Abha Security Prison under the
authority of the General Intelligence. He has been held in incommunicado detention since
27 June 2009 and has allegedly been subjected to ill-treatment. To date, Mr. El Baradei has
not been officially charged or brought before a judge.
25.
Hassan Anwar Hassan Ibrahim, born in 1977, usually residing in Nour, Egypt, was
arrested in Saudi Arabia on 1 January 2008. The reason for his arrest was an alleged failure
to respect the terms of his visa for the Hajj. The arrest took place when Mr. Ibrahim was
catching a steamship from Jeddah, Saudi Arabia back to Egypt. He was arrested by agents
of the General Investigation Directorate. The agents were in civilian clothing and did not
present him with an arrest warrant.
26.
Mr. Ibrahim was taken to Dhahban prison in Jeddah where he remained until 3
January 2009. He was then transferred to Al Asir prison where he stayed until 1 December
2009. Subsequently, Mr. Ibrahim was transferred back to Dhahban prison, where he stayed
until 1 January 2010. He is currently detained at the Abha Security Prison, under the
authority of the General Investigation Directorate.
27.
While in detention in Dhahban prison, Mr. Ibrahim was reportedly kept in solitary
confinement for about six months in a small and unventilated cell. He was also detained
incommunicado at the Abha Security Prison for an extended period of time. Since he was
transferred to the Abha Security prison, he has been allowed contact with his family on a
weekly basis. Mr. Ibrahim has not been officially charged or brought before a judge.
28.
Abdul Rahman Mahmoud Ibrahim Zeid, Egyptian national, usually residing in As-
Suwaidi district, Riyadh, was arrested at his residence on 22 April 2010. Reportedly, the
forces in charge of the arrest belonged to the General Intelligence service. They allegedly
failed to show any arrest warrant. Mr. Zeid was taken to Al Hayr prison where he was held
incommunicado detention and in solitary confinement from the date of his arrest until 2
February 2011. On the latter date, he was transferred to Abha Security Prison, under the
authority of the General Intelligence Directorate, where he remains. It is reported that
during his incommunicado detention, Mr. Zeid was forced to sign documents without
knowing their content. To date, Mr. Zeid has not been brought before a judge or officially
charged. His family is suffering the consequences of his detention as they have allegedly
been ill-treated and had their passports seized and residence permits withdrawn by the
authorities.
Source’s contention regarding the arbitrary character of the deprivation of liberty
29.
The source submits that the detention of the above 12 Egyptian nationals is arbitrary
and is deprived of any legal basis. None of these individuals has been officially charged,
many after years being held in detention. Additionally, these individuals been never been
brought before a judge or a competent authority to allow them to contest the legality of
their arrest and detention. The source contends that such treatment is in breach of articles 9
and 10 of the Universal Declaration of Human Rights and article 114 of the Saudi Law of
Criminal Procedure. The latter provides that a pretrial detention “shall not exceed six
months from the date of arrest of the accused. Thereafter, the accused shall be directly
transferred to the competent court, or be released”. The source maintains that the
deprivation of liberty of the above persons is also in violation of articles 2 and 35 of the
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Saudi Law of Criminal Procedure (prohibition of arbitrary arrest and detention) and articles
101 and 116 (the right to be informed of the charges).
Response from the Government
30.
The Working Group transmitted the above allegations to the Government of the
Kingdom of Saudi Arabia requesting that it to provide, in its reply, detailed information
about the current situation of Rabie Mohamed Abdelmaksoud, Jumaa Abdallah Abusraie,
Awad Al Sayed Zaky Abu Yahya, Sameh Anwar Ahmed Al Byasi, Abu Al Aineen
Abdallah Mohamed Esaa, Youssef Ashmawy, Ahmed Mohamed Al Said Al Hassan,
Khaled Mohamed Moussa Omar Hendom, Abdullah Mamdouh Zaki Demerdash, Mustafa
Ahmed Ahmed El Baradei, Hassan Anwar Hassan Ibrahim, Abdul Rahman Mahmoud
Ibrahim Zeid, and to clarify the legal provisions justifying their continued detention.
31.
The Working Group regrets that it has not received a response from the
Government.
Discussion
32.
In the absence of a response from the Government and in accordance with its
methods of work, the Working Group is able to render an opinion in the light of the
information submitted to it.
33.
Having studied and analysed the material before it, the Working Group considers it
appropriate to group these submissions, based on similarities in the arrest and detention of
these individuals, and address each group separately as follows.
34.
Regarding the first group of five detainees comprising of Messrs Abdelmaksoud,
Abusraie, Yahya, Al Byasi and Esaa, these individuals were arrested between April 2010
and September 2010 from the port of Duba in the Tabuk province upon their arrival by boat
from Egypt. All five were allegedly searched and found to be in possession of medication
banned in Saudi Arabia and arrested without warrants by uniformed agents of the Saudi
General Directorate of Investigation.
35.
Despite the fact that a period of over 24 months has elapsed between the arrest and
detention of these five individuals, they have never been formally charged or brought
before a judge to stand trial.
36.
The source states that all these detainees are the sole breadwinners of their
respective families, who are suffering as a consequence of the detention.
37.
The second group of detainees consists of four Egyptian nationals, Messrs.
Ashmawy, Al Hassan, Hendom and Demerdash, who were allegedly detained between
2004 and 2009 by plain-clothed agents of the Saudi General Intelligence Directorate,
without presenting a warrant. They have not been charged or presented before a judge to
this day.
38.
The last three individuals, Messrs. El Baradei, Ibrahim and Zeid were detained
between 2008 and 2010, without arrest warrants and charges regarding the nature of their
alleged offence/s. In these cases, plain-clothed agents of the General Intelligence
Directorate undertook the arrests.
39.
From the information provided by the source (and not contradicted due to the
absence of the Government’s response), the Working Group notes a range of violations of
national and international human rights obligations. At the international human rights level,
article 9 of the Universal Declaration of Human Rights states that, “no one shall be
subjected to arbitrary arrest, detention or exile”. Article 10 declares that, “everyone is
entitled in full equality to a fair and public hearing by an independent and impartial
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tribunal, in the determination of his rights and obligations and of any criminal charge
against him”. Both the Human Rights Committee and the former Commission on Human
Rights have clarified that the fundamental aspect of such rights consists in the possibility of
contesting the legality of one’s detention. Reference is made to resolution 1992/35 adopted
by the former Commission on Human Rights on 28 February 1992, which called on all
States that have not yet done so, 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 the detention is found to be unlawful. In the cases in hand, these provisions of human
rights law have not been adhered to.
40.
In addition to being detained without charge, without being presented before a
judge, Messrs. Ashmawy, Hendom, Ibrahim and Zeid were also allegedly subjected to
torture, ill-treatment, or inhuman behaviour which is a violation of, inter alia, the Universal
Declaration of Human Rights and the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, to which Saudi Arabia is a party.
41.
At the domestic level, it seems that a number of provisions of the Saudi laws have
been contravened. Article 114 of the Saudi Law on Criminal Procedure provides that, if the
accused is to be detained in pretrial detention, it is to last a maximum of five days,
renewable up to a total of six months. Yet the pretrial detention of all 12 detainees well
exceeds this period.
42.
In accordance with article 36 of the Saudi Basic Law of Governance, “the 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”. Moreover, article 35 of the Saudi
Law on Criminal Procedure (Royal Decree No. M/39) 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 2 of the Law of Criminal Procedure declares that “detention … shall be
for the period prescribed by the competent authority”. To date, none of the 12 detainees has
been brought before a competent authority or brought to trial.
43.
The Working Group notes with concern that a consistent pattern of arbitrary arrests
and detention is emerging in Saudi Arabia as well as a silence on the part of the
Government by not availing the opportunity of responding to allegations put forth by the
Working Group in cases alleging arbitrary detention presented to this group.1 It is therefore
pertinent to mention that the Working Group sees the present case as a matter of grave
concern since basic human rights are not being respected.
44.
The Working Group reiterates that the prohibition of arbitrary detention is part and
parcel of customary international law.2 This draws upon the established practice of human
rights bodies regarding the prohibition of arbitrary detention as a norm of customary
international law, authoritatively recognized as a peremptory norm of international law or
jus cogens.3 This is the approach which this Working Group follows in its opinions. Article
9 of the Universal Declaration of Human Rights prohibiting arbitrary arrest and detention is
1 See e.g. the Working Group’s opinions on Saudi Arabia No. 22/2008; No. 36/2008; No. 37/2008; No.
21/2009; No. 10/2011; No. 11/2011; No. 17/2011; No. 18/2011; No. 19/2011; No. 30/2011; No.
31/2011; No. 33/2011; No. 41/2011; No. 42/2011; No. 43/2011 and No. 8/2012. Available from
http://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx.
2 See e.g. opinions No. 15/2011 (China) and No. 16/2011 (China).
3 See, inter alia, the established practice of the United Nations as expressed by the Human Rights
Committee in its general comment No. 29 (2001) on derogation during a state of emergency, para. 11.
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a deeply entrenched human rights norm reflected in both practice and opinio juris of
States.4
Disposition
45.
In the light of the foregoing, the Working Group on Arbitrary Detention renders the
following opinion:
The deprivation of liberty of Rabie Mohamed Abdelmaksoud, Jumaa Abdallah
Abusraie, Awad Al Sayed Zaky Abu Yahya, Sameh Anwar Ahmed Al Byasi, Abu
Al Aineen Abdallah Mohamed Esaa, Youssef Ashmawy, Ahmed Mohamed Al Said
Al Hassan, Khaled Mohamed Moussa Omar Hendom, Abdullah Mamdouh Zaki
Demerdash, Mustafa Ahmed Ahmed El Baradei, Hassan Anwar Hassan Ibrahim and
Abdul Rahman Mahmoud Ibrahim Zeid is arbitrary, being in contravention of
articles 9 and 10 of the Universal Declaration of Human Rights; it falls under
categories I and III of the arbitrary detention categories referred to by the Working
Group when considering the cases submitted to it.
46.
The Working Group requests the Government of Saudi Arabia to release the above-
mentioned persons and bring their situation into conformity with the requirements of
international human rights law. To this end, if the case merits it, the Working Group in
particular requests the Government to ensure a fair, impartial trial respecting all the
guarantees thereof and enshrined in domestic Saudi and international human rights law.
47.
Consequent upon the opinion rendered and in view of the adverse effects of the
wrongful arrest and detention on the above-mentioned persons and their families, the
Working Group requests the Government to ensure appropriate reparation.
48.
The Working Group also requests the Government to ensure protection against
further ill-treatment of the detainees and initiate an impartial and effective investigation
into the allegations of torture and ill-treatment.
49.
The Working Group recalls the Human Rights Council’s call for all States to take
into account the Working Group’s views and, where necessary, to take the appropriate steps
to remedy the situation of persons arbitrarily deprived of their liberty. States are also invited
to extend their cooperation to the Working Group’s requests for information and to give
due consideration to the recommendations it has made.5
[Adopted on 28 August 2012]
4 See, inter alia, International Court of Justice, Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo), Merits, Judgment of 30 November 2010, I.C.J. Reports 2010,
para. 79; Separate Opinion of Judge Cançado Trindade, pp. 26-37, paras. 107–142.
5 Human Rights Council resolution 15/18 on arbitrary detention, paras. 3, 4 (a) and 9.
7