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A/HRC/WGAD/2017/10

Opinion no. 10/2017 concerning Salim Abdullah Hussain Abu Abdullah (Saudi Arabia)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2017-04-28 · en UN

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.17-08881(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-eighth session, 19-28 April 2017

Opinion No. 10/2017 concerning Salim Abdullah Hussain Abu Abdullah

(Saudi Arabia)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and

Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The mandate of the Working Group was most recently extended for a three-

year period in Council resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/33/66), on 16 December 2016 the

Working Group transmitted to the Government of Saudi Arabia a communication

concerning Salim Abdullah Hussain Abu Abdullah. The Government has not replied to the

communication in a timely manner. The State is not a party to the International Covenant

on Civil and Political Rights.

3.

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 him or her) (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 Covenant (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 on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

United Nations

A/HRC/WGAD/2017/10

General Assembly

Distr.: General

1 June 2017

Original: English

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Submissions

Communication from the source

4.

Salim Abdullah Hussain Abu Abdullah, born on 2 November 1984, is a citizen of

Saudi Arabia who normally resides in the village of Al-Awamiyah, in Al-Qatif region.

5.

On 11 December 2014, Mr. Abu Abdullah was in a car with two other individuals

when the car was stopped in a small street near the Centrepoint Mall of Al-Qatif. He was

subsequently arrested by members of the intelligence forces (the Mabahith, part of the

Ministry of the Interior) who were wearing civilian clothes. At the time of the arrest, he was

not presented with an arrest warrant nor was he provided with a reason for the arrest. Mr.

Abu Abdullah was severely beaten and shot a number of times in the course of the arrest.

6.

Following the arrest, Mr. Abu Abdullah was taken to the military hospital of

Dhahran, where he stayed for only two and a half days before being transferred to

Dammam Central Prison. Because his stay at the hospital was so short, he did not receive

the necessary medical treatment.

7.

During the first six months of his detention, Mr. Abu Abdullah was held

incommunicado. He was denied any contact with the outside world and placed in solitary

confinement. After the initial six months, he was again placed in solitary confinement and

only allowed rare contact with his family. At no stage was he allowed any contact with a

lawyer.

8.

Mr. Abu Abdullah was subjected to severe psychological and physical torture while

interrogated during the first six months of detention. According to the information received,

he was electrocuted, burned with cigarettes, beaten with cables and sticks all over his body

and stomped and stepped on; in addition, his head was banged against the walls and he

endured waterboarding. At one point, while being tortured, Mr. Abu Abdullah lost

consciousness. He was sent to the hospital where he received very minimum treatment.

9.

Mr. Abu Abdullah was coerced, under torture, to confess to crimes he did not

commit and forced to sign a statement that he was not allowed to read beforehand. Concern

has been raised by the source that the confession obtained under duress could be used later

as evidence against him in court.

10.

In addition, some family members of Mr. Abu Abdullah have reportedly been

intimidated and threatened by members of the security services.

11.

The source has expressed grave concern about the medical condition of Mr. Abu

Abdullah, whose body reportedly still bears signs of torture. His wounds, particularly the

bone fractures, are healing slowly owing to the lack of appropriate medical treatment and

the continued torture he has been subjected to. Mr. Abu Abdullah has become very weak

and suffers from severe back pain, which prevents him from sleeping or even sitting. His

vision and hearing have deteriorated and he also suffers from malnutrition.

12.

After almost two years of detention, Mr. Abu Abdullah still has not been brought

before a judicial authority nor has he been informed of the reason of his arrest and

detention.

13.

The source submits that the deprivation of liberty of Mr. Abu Abdullah is arbitrary

and falls under categories I and III of the categories defined in the methods of work of the

Working Group. With regard to category I, in the view of the source, Mr. Abu Abdullah has

been arrested and detained outside the protection of the rule of law as he was arrested by

intelligence services, which are not subject to any oversight. For over two years since the

time of his arrest on 11 December 2014, Mr. Abu Abdullah has not been informed of the

reason or the legal basis of his arrest and detention; no charge whatsoever has been brought

against him. The source argues that the arrest and detention of Mr. Abu Abdullah without

any legal basis violates certain provisions of Saudi domestic law, including article 36 of the

Basic Law of Governance and articles 35 and 114 of the Law of Criminal Procedure (Royal

Decree No. M/39). The source adds that it is also in violation of article 9 of the Universal

Declaration of Human Rights.

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14.

The source submits that Mr. Abu Abdullah has not been guaranteed the international

norms relating to the right to a fair trial during the period of his deprivation of liberty, in

violation of articles 10 and 11 of the Universal Declaration of Human Rights. The source

argues that Mr. Abu Abdullah was arrested by personnel of the intelligence forces in

civilian clothes who did not present a warrant at the time of the arrest nor did they explain

the reasons of the arrest; he was subjected to six months of incommunicado detention and

to torture, including in the form of solitary confinement; he was coerced into make

confessions; he has not been allowed access to any lawyer during interrogations nor at any

stage of his detention; and, two years after his arrest, he still has not been brought before a

court so that a decision on the lawfulness of his detention could be taken.

Response from the Government

15.

On 16 December 2016, the Working Group transmitted the allegations from the

source to the Government under its regular communications procedure. The Working

Group requested the Government to provide, by 14 February 2017, detailed information

about the current situation of Mr. Abu Abdullah and any comments on the source’s

allegations.

16.

On 22 December 2016, the Working Group received a request from the Government

for a one-month extension of the deadline in order to provide the Working Group with a

substantial reply. While the Working Group requested the Government on 25 January 2017

to provide the reasons justifying the request for extension, the Government replied on 26

January 2017 without specifying the reasons. The Working Group thus concluded that the

request for extension did not meet the criteria set out in paragraph 16 of its methods of

work and therefore did not grant the extension.

17.

The Working Group notes that the Government submitted a reply on 15 May 2017.

However, the Working Group cannot accept the reply as if it had been presented within the

time limit.

Discussion

18.

In the absence of a timely response from the Government, the Working Group has

decided to render the present opinion, in conformity with paragraph 15 of its methods of

work.

19.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge

the prima facie credible allegations made by the source.

20.

The Working Group notes with concern the consistent pattern of arbitrary arrests

and arbitrary detention in Saudi Arabia.1 The present case raises grave concerns, as it is yet

another example of the existence of that pattern.

21.

The source has alleged and the Government of Saudi Arabia has not challenged the

allegation that Mr. Abu Abdullah was arrested by plainclothes intelligence forces of the

Ministry of the Interior on 11 December 2014. At the time of the arrest, he was not given

any reason for his arrest nor was he presented with an arrest warrant. In fact, to date, Mr.

Abu Abdullah remains in detention without having been formally charged and without

having been given any reason for his continued detention.

22.

The Working Group wishes to emphasize that prohibition of arbitrary detention

bears an absolute character; it is in fact a peremptory norm of international law and

therefore binding upon all States irrespective of their treaty obligations (see A/HRC/22/44,

paras. 37-75, and A/HRC/30/37, para. 11). As the International Court of Justice has stated,

1 See, for example, opinions No. 22/2008, No. 36/2008, No. 37/2008, No. 2/2011, No. 10/2011, No.

30/2011, No. 42/2011, No. 45/2013, No. 32/2014, No. 13/2015, No. 52/2016 and No. 61/2016.

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“wrongfully to deprive human beings of their freedom and to subject them to physical

constraint in conditions of hardship is in itself manifestly incompatible with the principles

of the Charter of the United Nations, as well as with the fundamental principles enunciated

in the Universal Declaration of Human Rights”.2

23.

The right to liberty and security of the person, enshrined in article 3 of the Universal

Declaration of Human Rights, applies to everyone and is further guaranteed through article

9 of the Universal Declaration of Human Rights, which prohibits arbitrary detention. As

stated in the United Nations Basic Principles and Guidelines on Remedies and Procedures

on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court,

deprivation of liberty is regarded as unlawful when it is not on such grounds and in

accordance with procedures established by law (see A/HRC/30/37, para. 12). However, in

order to ascertain such legal basis, the authorities must present charges when a person is

arrested and detained. That has not happened in the present case. The Working Group

concludes, therefore, that the arrest of Mr. Abu Abdullah on 11 December 2014 and his

continued detention since that date constitutes arbitrary detention (category I) as it is clearly

impossible to invoke any legal basis justifying his deprivation of liberty.

24.

Furthermore, since his arrest on 11 December 2014, Mr. Abu Abdullah has not been

brought before a judicial authority and has therefore been unable to challenge the legality of

his continued detention. As stated in the above-mentioned Basic Principles, the right to

challenge the lawfulness of detention before a court is a self-standing human right and a

judicial remedy that is essential for preserving legality in a democratic society (see

A/HRC/30/37, paras. 2-3). It is a right that is also enshrined in articles 10 and 11 of the

Universal Declaration of Human Rights. In the present case, Mr. Abu Abdullah has been

denied that right continuously since 11 December 2014.

25.

Moreover, the source has alleged, and the Government of Saudi Arabia has not

challenged the allegation, that Mr. Abu Abdullah was held in incommunicado detention for

six months; that during that period he was subjected to the most appalling treatment, which

included being electrocuted, burned with cigarettes, beaten with cables and sticks all over

his body and stomped and stepped on; in addition, his head was banged against the walls

and he endured waterboarding. He was forced to confess to crimes and sign such

confessions.

26.

The Working Group wishes to express concern about the fact that Mr. Abu Abdullah

was held in incommunicado detention for six months. The Working Group, in its practice,

has consistently argued that holding persons incommunicado breaches the right to challenge

the lawfulness of detention before a judge.3 Articles 10 and 11 of the Universal Declaration

of Human Rights also confirm the impermissibility of incommunicado detention.

Furthermore: the Committee against Torture has made it clear that incommunicado

detention creates conditions that lead to violations of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (see, for example, A/54/44,

para. 182 (a)); the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment has consistently urged States to declare incommunicado detention

illegal (see, for example, A/54/426, para. 42, and A/HRC/13/39/Add.5, para. 156); and the

Human Rights Committee, in paragraph 35 of its general comment No. 35 (2014) on liberty

and security of person, has argued that incommunicado detention that prevents prompt

presentation before a judge inherently violates article 9 (3) of the International Covenant on

Civil and Political Rights.

27.

The Working Group is particularly concerned about the allegations of torture and ill-

treatment and extraction of confessions made by the source, which have not been

challenged by the Government of Saudi Arabia. The treatment described reveals a prima

facie breach of the absolute prohibition of torture, which is a peremptory norm of

international law, the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, principle 6 of the Body of Principles for the Protection of All

2 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, at p. 42,

para. 91.

3 See, for example, opinions No. 56/2016 and No. 53/2016.

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Persons under Any Form of Detention or Imprisonment and the rule 1 of the United Nations

Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). The

Working Group shall refer the present case to the Special Rapporteur on torture for further

consideration.

28.

Furthermore, the denial of assistance by a lawyer constitutes a violation of principle

17.1 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment and of the principle 9 of the Basic Principles and Guidelines on

Remedies and Procedures on the Rights of Anyone Deprived of Their Liberty to Bring

Proceedings Before a Court. The subsequent failure to provide Mr. Abu Abdullah with

medication and treatment for the very serious health conditions that he suffers from is a

violation of the United Nations Standard Minimum Rules for the Treatment of Prisoners

(the Nelson Mandela Rules), in particular its rules 24, 25, 27 and 30.

29.

The Working Group therefore concludes that the 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 Saudi Arabia is of such

gravity as to give the deprivation of liberty of Mr. Abu Abdullah an arbitrary character

(category III).

30.

The Working Group takes this opportunity to invite the Government of Saudi Arabia

to ratify the International Covenant on Civil and Political Rights.

Disposition

31.

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

The deprivation of liberty of Salim Abdullah Hussain Abu Abdullah, being in

contravention of articles 3, 9, 10 and 11 of the Universal Declaration of Human

Rights, is arbitrary and falls within categories I and III.

32.

The Working Group requests the Government of Saudi Arabia to take the steps

necessary to remedy the situation of Mr. Abu Abdullah without delay and bring it into

conformity with the relevant international norms on detention, including those set out in the

Universal Declaration of Human Rights.

33.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Abu Abdullah immediately and

accord him an enforceable right to compensation and other reparations, in accordance with

international law.

34.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers the case to the Special Rapporteur on torture.

Follow-up procedure

35.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether Mr. Abu Abdullah has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Abu

Abdullah;

(c)

Whether an investigation has been conducted into the violation of Mr. Abu

Abdullah’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of Saudi Arabia with its international obligations in

line with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

36.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

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whether further technical assistance is required, for example, through a visit by the

Working Group.

37.

The Working Group requests the source and the Government to provide the above

information within six months of the date of the transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

38.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken. 4

[Adopted on 20 April 2017]

4 See Human Rights Council resolution 33/30, paras. 3 and 7.