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A/HRC/WGAD/2017/93

Opinion no. 93/2017 concerning Muhammed Al Saqr (Saudi Arabia)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2017-11-24 · 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.18-00682(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eightieth session, 20–24 November 2017

Opinion No. 93/2017 concerning Muhammed Al Saqr (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 that mandate and most

recently extended it for a three-year period in its resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/36/38), on 30 August 2017 the

Working Group transmitted to the Government of Saudi Arabia a communication

concerning Muhammed Al Saqr. The Government replied to the communication on 23

October 2017. 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/2017/93

General Assembly

Distr.: General

19 January 2018

Original: English

A/HRC/WGAD/2017/93

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Submissions

Communication from the source

4.

Muhammed bin Nasser bin Muhammed Al Saqr is a 24-year-old Saudi citizen

working for the Saudi Emergency Force. He usually resides in Dammam in Saudi Arabia.

Arrest and detention

5.

The source reports that on 18 July 2015, officers from the Directorate of General

Investigation (Al-Mabahith al-Amma) in civilian clothes raided Mr. Al Saqr’s house and

searched it, without confiscating anything. They then arrested him without any warrant,

under the pretext that he had to “sign documents” as a formality, and promised to bring him

back within half an hour. Beforehand, they had asked him to take off his uniform and

change into civilian clothes.

6.

According to the source, Mr. Al Saqr subsequently remained disappeared for more

than three months. Indeed, his family repeatedly tried to inquire to the Ministry of the

Interior but to no avail. They then filed a complaint with the National Society for Human

Rights, after which they received a phone call from Mr. Al Saqr on 29 October 2015 saying

that he was being detained in Riyadh. They later found out that after he hung up the phone,

he was severely beaten in retaliation for the complaint filed by his family. He was then once

again held incommunicado, until May 2016.

7.

In March 2016, Mr. Al Saqr’s family reportedly managed to meet with the adviser to

Prince Mohammed bin Nayef, the former Minister of the Interior of Saudi Arabia. His

family was told that the investigation into Mr. Al Saqr’s case had “ended in January 2016”

and that he was still being held as a disciplinary measure, but would be released “within a

couple of weeks”. According to the source, Mr. Al Saqr was initially detained at Naif Arab

University for Security Sciences, before being transferred to Al-Ha’ir Prison in March

2016.

8.

The source reports that on 15 May 2016, after 11 months in detention, Mr. Al Saqr

was allowed his first family visit, at Al-Ha’ir Prison. His relatives noticed traces of torture

on his face and body. He informed them that he had been tortured at Naif Arab University

for Security Sciences by masked men in black clothing who had punched him, kicked him

and beaten him with a rod. Mr. Al Saqr was reportedly held in solitary confinement for 11

months, was deprived of sleep for 31 days and was threatened with harm to his family. He

was then forced to sign and fingerprint confessions stating that he had “taken part in the Al

Abha Mosque bombing” — which took place four months after his arrest — and had

“hidden weapons in his home”, and “transferred money to his brother”, who has been

missing since June 2015. Indeed, the source believes that Mr. Al Saqr is being arbitrarily

detained because the authorities are in fact looking for his brother.

9.

After the visit, Mr. Al Saqr was reportedly transferred from solitary confinement to

the general prison population at Al-Ha’ir, for a period of three months. In October 2016, he

was reportedly placed in solitary confinement again and underwent another round of

investigations, during which he was tortured. On 16 November 2016, he was finally

allowed to contact his family to inform them that the next visit would be in January 2017.

In February 2017, he was reportedly once more detained incommunicado for a period of

two weeks before he was allowed to contact his family again.

10.

According to the source, Mr. Al Saqr has not been allowed to appoint or meet with a

lawyer, and his family has faced obstacles in seeking legal counsel as attorneys-at-law

refuse to take on his case citing the fact that they are afraid to represent Al-Ha’ir Prison

detainees who are under the custody of the Directorate of General Investigation.

11.

The source also reports that Mr. Al Saqr has to this day not been charged, nor has he

been presented to a judicial authority.

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Analysis of violations

12.

In the light of the above information, the source submits that the detention of Mr. Al

Saqr falls under categories I and III of the categories applicable to the cases under

consideration by the Working Group.

Category I — absence of legal basis justifying the deprivation of liberty

13.

According to the source, the detention of Mr. Al Saqr from its outset to this day

lacks a legal basis, as he was arrested without a warrant for or explanation for his arrest, he

was detained incommunicado for 11 months, and he has reportedly not been charged with

any crime, more than two years after his arrest. The source thus submits that, as such, his

detention is in violation of article 9 of the Universal Declaration of Human Rights, falling

within category I.

Category III — non-observance of international fair trial norms

Arbitrary arrest and incommunicado detention

14.

According to the source, Mr. Al Saqr was arrested without a warrant for his arrest or

for the search of his house, and was given false pretences by the arresting officers. His

arrest is therefore in violation of principle 10 of the Body of Principles for the Protection of

All Persons under Any Form of Detention or Imprisonment.

15.

Furthermore, Mr. Al Saqr was subsequently secretly detained for 3 months and was

detained incommunicado for a total of 11 months. The source notes that by placing

detainees outside the protection of the law, incommunicado detention is a prima facie form

of arbitrary detention and constitutes a violation of article 6 of the Universal Declaration of

Human Rights which provides that “everyone has the right to recognition everywhere as a

person before the law”.

Violation of the right to be promptly brought before a judge

16.

The source reports that Mr. Al Saqr has, during a period of more than two years of

detention, never been presented to a judge or a judicial authority and has yet to be charged

with any crime. The source thus submits that he was denied the right to challenge the

legality of his detention, in violation of principle 11 of the Body of Principles.

Torture

17.

According to the source, Mr. Al Saqr was subjected to acts of physical torture, such

as being repeatedly punched, kicked and beaten with a rod in order to force him to confess,

in clear violation of article 2 of the Convention against Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment and article 5 of the Universal Declaration of Human

Rights.

18.

In addition to the physical torture, Mr. Al Saqr was reportedly detained

incommunicado and in solitary confinement for the first 11 months of his detention. The

source notes that, as has repeatedly been stated by special procedures of the Human Rights

Council, prolonged solitary confinement — i.e. in excess of 15 days — constitutes torture.

Furthermore, incommunicado detention can itself constitute torture, as per General

Assembly resolution 60/148.

Violation of the right to legal counsel

19.

The source submits that Mr. Al Saqr was denied access to legal counsel throughout

his detention and was interrogated in the absence of a lawyer, in violation of principles 17

and 18 of the Body of Principles.

20.

In the light of the above, the source submits that the non-observance of the

international norms relating to the right to a fair trial is of such gravity as to give the

deprivation of liberty of Mr. Al Saqr an arbitrary character, falling under category III.

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Response from the Government

21.

On 30 August 2017, the Working Group transmitted the allegations from the source

to the Government through its regular communication procedure. The Working Group

requested the Government to provide detailed information by 30 October 2017 about the

current situation of Mr. Al Saqr and any comment on the source’s allegations.

22.

In its response dated 23 October 2017, the Government informs the Working Group

that Mr. Al Saqr was arrested on 18 July 2015, following the issuance of an arrest warrant

against him pursuant to article 4 of the Penal Law for Crimes of Terrorism and its

Financing (Royal Decree No. M/16 of 27 December 2013). He was interrogated by the

competent authority and detained on the basis of articles 2 and 5 of the law, and the

detention was extended by the competent court on the basis of article 5 of the law for the

following charges:

(a)

Supporting the terrorist organization Islamic State in Iraq and the Sham

(ISIS), meeting with supporters of this organization, covering up their terrorist schemes

within Saudi Arabia, and covering for persons wanted for fighting in one of the conflict-

afflicted States;

(b)

Financing terrorism in one of the conflict-afflicted States in contravention of

article 1 (b) of the law;

(c)

Committing cybercrime criminalized on the basis of the anti-cybercrime law,

including joining an electronic group in a social media program to provide propaganda

support to the terrorist organization (ISIS); and

(d)

Selling arms and ammunition, which is punishable and punished in

accordance with article 34 (b) of the Anti-Cybercrime Law (Royal Decree No. M/17 of 26

March 2007).

23.

Concerning the allegation of Mr. Al Saqr’s incommunicado detention, the

Government claims that article 6 of the Penal Law for Crimes of Terrorism and its

Financing authorizes the investigator to prevent the accused from contacting others during

the interrogation, and that Mr. Al Saqr’s visitation and communication rights have been

respected. Article 10 of the said law gives the defendant the right to seek legal

representation and Mr. Al Saqr has not been prevented from doing so. He has not been

subjected to torture or ill-treatment.

24.

The Government also disputes the allegation of detention and torture at Naif Arab

University for Security Sciences, which allegedly does not belong to the Government and is

a place of academic teaching, not of investigation. Detention or imprisonment is allowed

only in designated locations for a period determined by the competent authority in

accordance with article 2 of the Criminal Procedure Code.

25.

The Government claims that Mr. Al Saqr’s house was searched in accordance with

article 16 of the Penal Law for Crimes of Terrorism and its Financing, and that all the

procedures and guarantees were respected.

26.

According to the Government, Mr. Al Saqr was not forced to sign confessions in

relation to his involvement in the Al Abha Mosque bombing, since he has not been charged

with that crime.

27.

The Government also denies that Mr. Al Saqr has been detained in order to go after

his brother, since his brother is in one of the conflict-afflicted States to take part in combat.

Mr. Al Saqr has been detained for the previously mentioned crimes.

28.

Lastly, the Government notes that it faithfully observes international human rights

standards.

Further comments from the source

29.

The response from the Government was transmitted to the source for its further

comments, on 25 October 2017. In its response, of 7 November 2017, the source welcomes

the Government’s response but stresses that most of the information provided either fails to

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address the allegations raised or denies them outright without providing compelling

evidence.

30.

As to the Government’s claims that Mr. Al Saqr was arrested pursuant to an arrest

warrant issued under article 4 of the Penal Law for Crimes of Terrorism and its Financing,

the source explains that article 4 confers the power to issue an arrest warrant for terror-

related crimes to the Minister of the Interior or his delegate rather than to a competent

judicial authority, and that the law does not refer to the right of a detainee to be presented

with such a warrant. The source reaffirms that Mr. Al Saqr was arbitrarily arrested without

a warrant and without being informed of the reason for his arrest.

31.

The source also points out that the Government failed to specify when Mr. Al Saqr

was allowed to communicate with the outside world or receive visits from his family and

failed to provide documentary evidence of communications that took place between July

2015 and May 2016. Therefore, the information provided by the Government does not

contradict the allegation that Mr. Al Saqr was detained incommunicado for almost 11

months before being able to contact his family.

32.

In response to the Government’s denial of Mr. Al Saqr’s secret detention and torture

at Naif Arab University for Security Sciences, citing domestic legal provisions, the source

highlights the lack of any documentation to substantiate the Government’s claim as well as

the Government’s failure to indicate the place of detention of Mr. Al Saqr during the

relevant period. The source thus reaffirms that Mr. Al Saqr was secretly detained at Naif

Arab University for Security Sciences until March 2016, and was placed outside the

protection of the law while being interrogated and subjected to abusive treatment.

33.

The source regrets the Government’s non-response to the allegations concerning the

violation of Mr. Al Saqr’s right to be promptly brought before a judicial authority and of his

right to challenge the legality of his deprivation of liberty under a habeas corpus process.

34.

The source also notes that the Government failed to specify whether Mr. Al Saqr had

been officially charged, a tacit acknowledgment that he is currently held in detention

without knowing the charges against him, in violation of his right to be promptly informed

of the charges against him, which deprives his detention of any legal basis.

35.

In addition, the source explains that, contrary to the Government’s account, article

10 of the Penal Law for Crimes of Terrorism and its Financing gives the security forces

wide discretionary powers as regards access to legal counsel, which may be provided

“within an adequate period of time to be decided upon by the investigatory body”, and that

Mr. Al Saqr was never allowed to meet with a lawyer and was interrogated in the absence

of his legal representative in violation of his right to legal counsel.

36.

Lastly, the source notes that the Government rejected the allegations of torture and

forced confessions but failed to provide an independent medical examination or other

factual evidence. According to the source, Mr. Al Saqr was subjected to severe acts of

torture, including incommunicado detention and solitary confinement for a prolonged

period of time, beatings that left signs of physical violence visible on his body at the time of

his family’s visit, sleep deprivation, and threats of harm to his relatives that amount to

torture under article 1 of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, acceded to by Saudi Arabia in 1997, and represent a

serious violation of the right to a fair trial and due process.

Discussion

37.

The Working Group thanks the source and the Government for their engagement

and for their submissions in relation to the detention of Mr. Al Saqr.

38.

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).

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39.

The Working Group recalls that where it is alleged that a person has not been

afforded, by a public authority, certain procedural guarantees to which he or she was

entitled, the burden of proof should rest with the public authority, because the latter is in a

better position to demonstrate that it has followed the appropriate procedures and applied

the guarantees required by law.1

40.

At the outset, the Working Group notes with concern that it has heard numerous

complaints about prolonged incommunicado detention, as well as torture, for months if not

years, of Saudi citizens and foreign nationals by the Directorate of General Investigation,

the Ministry of the Interior’s domestic intelligence service doubling as a secret police

agency, which has been nearly ubiquitous in the cases referred to the Working Group from

Saudi Arabia for over two decades, since the first appearance in a decision by the Working

Group in its eighth session, in 1993. 2 The Working Group notes that practices of

incommunicado detention effectively place the victims outside the protection of the law and

deprive them of any legal safeguards.

Category I

41.

The Working Group will examine the relevant categories applicable to its

consideration of this case, including category I, which concerns deprivation of liberty

without invoking any legal basis.

42.

According to the information provided by the source, which the Government has

failed to rebut with credible evidence, Mr. Al Saqr was arrested without a warrant and was

not promptly informed of the reasons for his arrest or of any charges against him.

43.

While the Government states that Mr. Al Saqr was arrested on 18 July 2015 in

accordance with the law and due process and that he was granted visitation and

communication rights, it has failed to specify when Mr. Al Saqr was in fact allowed to

communicate with the outside world or receive visits from his family, or to provide

documentary evidence such as a copy of the arrest warrant and visitation logs or phone

registries to prove communications taking place between July 2015 and May 2016.

44.

The Working Group also holds that an arrest warrant, even assuming that it has been

issued by the Minister of the Interior or by delegated organs such as the Directorate of

General Investigation, under article 4 of the Penal Law for Crimes of Terrorism and its

Financing, does not meet the requirement that any form of detention or imprisonment

should be ordered by, or be subject to the effective control of, a judicial or other authority

under the law whose status and tenure should afford the strongest possible guarantees of

competence, impartiality and independence, in accordance with principle 4 of the Body of

Principles. The Working Group is of the view that the Ministry of the Interior or its

delegated organs cannot be considered as a competent authority in this respect. The

Working Group underlines that any deprivation of liberty without a valid arrest warrant

issued by a competent, independent and impartial judicial authority is arbitrary and lacks

legal basis.

45.

The source has also alleged, and the Government has failed to refute with

documentary proof, that Mr. Al Saqr was subsequently “disappeared” for more than three

months, before he was allowed to make a brief phone call to his family, and that he was

1 See Ahmadou Sadio Diallo (Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J.

Reports 2010, p. 639, at pp. 660–661, para. 55; and opinions No. 41/2013 (Libya), para. 27, and No.

59/2016 (Maldives), para. 61.

2 The Working Group found the deprivation of liberty of the person(s) concerned to be arbitrary in its

decisions Nos. 60/1993, 19/1995 and 48/1995; and in its opinions Nos. 8/2002, 25/2004, 34/2005,

35/2005, 9/2006, 12/2006, 36/2006, 37/2006, 4/2007, 9/2007, 19/2007, 27/2007, 6/2008, 11/2008,

13/2008, 22/2008, 31/2008, 36/2008, 37/2008, 21/2009, 2/2011, 10/2011, 11/2011, 17/2011, 18/2011,

19/2011, 30/2011, 31/2011, 33/2011, 41/2011, 42/2011, 43/2011, 44/2011, 45/2011, 8/2012, 22/2012,

52/2012, 53/2012, 32/2013, 44/2013, 45/2013, 46/2013, 14/2014, 32/2014, 13/2015, 38/2015,

52/2016, 61/2016 and 10/2017. The Working Group did not find the detention of the person

concerned to be arbitrary in opinion No. 44/2006, and it filed the case after the release of the

detainee(s) in decision No. 37/1993 and opinions No. 22/2005 and No. 18/2014.

A/HRC/WGAD/2017/93

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held incommunicado for a period of 11 months by the Directorate of General Investigation

at Naif Arab University for Security Sciences and Al-Ha’ir Prison, which placed him

outside the protection of the law. Furthermore, the secret and incommunicado detention

entailed the denial of Mr. Al Saqr’s right to notify and communicate with his family and

lawyer in accordance with principles 15, 16, 17, 18 and 19 of the Body of Principles, and

his right to be brought promptly before a judge and to be tried within a reasonable time as

stipulated in principles 37 and 38 of the Body of Principles. All in all, the source has

alleged that his incommunicado detention resulted in the cumulative violation of articles 6,

8, 9, 10 and 12 of the Universal Declaration of Human Rights.

46.

The Working Group underlines that 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 Universal Declaration of Human Rights.

Article 9, which prohibits arbitrary arrest and detention, is a deeply entrenched human

rights norm, reflected in State practice.3 Prohibition of arbitrary detention is part and parcel

of customary law that bears an absolute character and is in fact a peremptory norm (jus

cogens) of international law and therefore binding upon all States, irrespective of their

treaty obligations.4

47.

In addition, 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.5 In order to ascertain

such legal basis, the authorities must present the charges when a person is arrested and

detained, which did not happen in the present case.

48.

Furthermore, during his secret detention exceeding three months, Mr. Al Saqr was

placed outside the protection of the law, in violation of article 6 of the Universal

Declaration of Human Rights. Mr. Al Saqr’s incommunicado detention in a secret location

also appears to amount to a prima facie enforced disappearance, which has been universally

condemned “as a denial of the purposes of the Charter of the United Nations and as a grave

and flagrant violation of the human rights and fundamental freedoms proclaimed in the

Universal Declaration of Human Rights and reaffirmed and developed in international

instruments in this field”.6

49.

The Working Group expresses its serious concern at the secret and incommunicado

detention of Mr. Al Saqr. The Working Group, in its practice, has consistently argued that

holding a person incommunicado breaches the right to challenge the lawfulness of

detention before a judge.7 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.8 The Special Rapporteur on torture and

other cruel, inhuman or degrading treatment or punishment has also consistently urged

States to declare incommunicado detention illegal.9

3 See Ahmadou Sadio Diallo (Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J.

Reports 2010, p. 663, para. 65, and the separate opinion of Judge Cançado Trindade, pp. 763–777,

paras. 107–142. See also Working Group on Arbitrary Detention opinions No. 30/2011, para. 18; No.

31/2011, para. 16; No. 33/2011, para. 16; No. 41/2011, para. 15; No. 42/2011, para. 21; No. 43/2011,

para. 16; No. 44/2011, para. 18; No. 45/2011, para. 21; No. 22/2012, para. 44; No. 53/2012, para. 20;

and No. 14/2014, para. 18.

4 See Working Group on Arbitrary Detention deliberation No. 9 concerning the definition and scope of

arbitrary deprivation of liberty under customary international law (A/HRC/22/44, paras. 37–75),

specifically paras. 42–51; A/HRC/30/37, para. 11; and opinions No. 63/2017, para. 51; No. 15/2011,

para. 20; and No. 16/2011, para. 12.

5 See A/HRC/30/37, para. 12.

6 See General Assembly resolution 47/133.

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

8 See A/54/44, para. 182 (a).

9 See A/54/426, para. 42; and A/HRC/13/39/Add.5, para. 156.

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50.

The Working Group therefore considers that the arrest and prolonged secret and

incommunicado detention of Mr. Al Saqr by the Directorate of General Investigation lack a

legal basis and are thus arbitrary, falling under category I.10

Category III

51.

The Working Group will now proceed to consider whether the violations of the right

of Mr. Al Saqr to a fair trial and due process were of such gravity as to give his deprivation

of liberty an arbitrary character, falling within category III.

52.

The source has alleged that Mr. Al Saqr was denied access to legal counsel

throughout his detention and that he was interrogated in the absence of a lawyer. The

Government has failed to refute these allegations with documentary proof. The Working

Group finds that the complete denial of legal assistance to Mr. Al Saqr for the entire

duration of his detention since 18 July 2015 constitutes a violation of principles 17 (1) and

18 (1), (2) and (3) of the Body of Principles and of principle 9 of 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. The Working Group expresses its

particular concern at article 10 of the Penal Law for Crimes of Terrorism and its Financing,

under which access to legal assistance may be granted “within an adequate period of time to

be decided upon by the investigatory body”.

53.

The Working Group notes with serious concern that Mr. Al Saqr was not promptly

informed of the nature and cause of the charges against him. He was also not brought

promptly before a judge, protected from forced self-incrimination during the interrogations,

tried without undue delay within a reasonable time, released pending the trial, or allowed to

take proceedings before a court to determine the lawfulness of his detention. The Working

Group recalls that these minimum due process and fair trial guarantees are protected under

articles 9, 10 and 11 of the Universal Declaration of Human Rights as well as peremptory

norms (jus cogens) of customary international law.11

54.

According to the source, Mr. Al Saqr was also subjected to acts of physical torture,

such as being repeatedly punched, kicked and beaten with a rod in order to force him to

confess. He was reportedly also detained incommunicado and in solitary confinement for

the first 11 months of his detention. The Government has rejected these allegations of

torture and forced confessions but has failed to provide evidence in the form of an

independent medical examination or other factual evidence.

55.

The Working Group notes that the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment has defined solitary confinement in excess

of 15 days as “prolonged”, at which point some of the harmful psychological effects of

isolation can become irreversible.12 Such prolonged solitary confinement may amount to

cruel, inhuman or degrading treatment or punishment and, in certain instances, may amount

to torture, 13 and prolonged incommunicado detention in a secret place may amount to

torture as described in article 1 of the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment.14 The Working Group finds that Mr. Al

Saqr’s prolonged incommunicado detention in a secret place, as well as the fact that he was

held in solitary confinement for extensive periods of time, would appear to qualify as a

prima facie violation of the prohibition of torture.

56.

The Working Group expresses its grave concern at the allegation that Mr. Al Saqr

was deprived of sleep for 31 days, and notes that restriction of sleep is one of the torture

methods listed in paragraph 145 of the Manual on the Effective Investigation and

10 See opinions No. 63/2017, para. 53; No. 21/2017, para. 37; No. 17/2017, para. 37; and No. 39/2016,

para. 45.

11 See also principle 36 (1) of the Body of Principles.

12 See A/66/268, paras. 26 and 61. See also rule 44 of the United Nations Standard Minimum Rules for

the Treatment of Prisoners (the Nelson Mandela Rules), which likewise refer to solitary confinement

for a period in excess of 15 consecutive days as prolonged solitary confinement.

13 See A/63/175, paras. 56 and 77.

14 See A/56/156, para. 14.

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Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (the Istanbul Protocol).15 In this regard, the Working Group finds that sleep

deprivation for 31 days in and of itself would appear to amount to a prima facie violation of

the prohibition of torture and inhuman treatment.

57.

The Working Group also expresses its grave concern at the threat of physical harm

to Mr. Al Saqr’s family during his interrogation. It notes that the threat of harm to one’s

family is one of the torture methods listed in paragraph 145 of the Istanbul Protocol. The

Working Group concludes that the threat of harm to the family of Mr. Al Saqr would in and

of itself appear to amount to a prima facie violation of the prohibition of torture and

inhuman treatment, and also violates articles 12 and 16 of the Universal Declaration of

Human Rights.

58.

The Working Group reminds the Government of the legal obligations undertaken by

it as a State party to the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, which include the duty to ensure that its competent

authorities proceed to a prompt and impartial investigation, wherever there is reasonable

ground to believe that an act of torture has been committed in any territory under its

jurisdiction (art. 12). The Government should also ensure that any individual who alleges

that he or she has been subjected to torture has the right to complain to, and to have his case

promptly and impartially examined by, its competent authorities (art. 13), that, in its legal

system, the victim of an act of torture obtains redress and has an enforceable right to fair

and adequate compensation (art. 14), and that any statement which is established to have

been made as a result of torture shall not be invoked as evidence in any proceedings, except

against a person accused of torture as evidence that the statement was made (art. 15).

59.

In the light of the foregoing, the Working Group concludes that the violations of Mr.

Al Saqr’s fair trial rights are of such gravity as to render his deprivation of liberty arbitrary,

falling within category III.

Penal Law for Crimes of Terrorism and its Financing (Royal Decree No. M/16 of 27

December 2013)

60.

The Working Group considers that the Penal Law for Crimes of Terrorism and its

Financing (Royal Decree No. M/16 of 27 December 2013), especially articles 4, 6 and 16

of that law, require revision in order to comply with international human rights standards. A

valid arrest and search warrant must be issued not by the executive branch that carries out

the arrest or search but by a competent, independent and impartial judicial authority; and

legal assistance must be available at all stages of detention to guarantee the right to liberty

and security of person and protection from arbitrary arrest and detention or arbitrary

interference with a person’s privacy, family, home and correspondence under articles 3, 9

and 12 of the Universal Declaration of Human Rights as well as under the peremptory

norms (jus cogens) of customary international law.

Directorate of General Investigation (Al-Mabahith al-Amma)

61.

The Working Group wishes to express its grave concern about the pattern of

arbitrary detention, torture and enforced disappearance perpetrated by the Ministry of the

Interior’s Directorate of General Investigation (Al-Mabahith al-Amma). The Working

Group recalls that under certain circumstances, widespread or systematic imprisonment or

other severe deprivation of physical liberty in violation of fundamental rules of

15 Office of the United Nations High Commissioner for Human Rights, Professional Training Series No.

8/Rev.1, available at www.ohchr.org/Documents/Publications/training8Rev1en.pdf. The principles

contained in the Istanbul Protocol were endorsed by the Commission on Human Rights and the

General Assembly; see Commission on Human Rights resolution 2000/43 and General Assembly

resolution 55/89.

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10

international law, as well as torture and enforced disappearance of persons, may constitute

crimes against humanity.16

Naif Arab University for Security Sciences

62.

The Working Group also expresses its grave concern at the allegation that Mr. Al

Saqr was held in incommunicado detention and subjected to torture and ill-treatment at Naif

Arab University for Security Sciences, an institution of higher education located in the

capital city. The Government has failed to produce any documentary proof to refute this

allegation or to reveal the location of Mr. Al Saqr’s detention from July 2015 to May 2016.

63.

The Working Group considers that it is impossible for such secret detention and

torture to take place without the knowledge and acquiescence, if not the active assistance,

of the faculty and administrative staff of Naif Arab University for Security Sciences. In the

view of the Working Group, it is essential that the National Society for Human Rights or

another independent body launch a thorough investigation into the matter.

64.

The Working Group will refer the allegations of enforced disappearance, torture and

ill-treatment of Mr. Al Saqr at Naif Arab University for Security Sciences, on suspicion of

alleged terrorism connections, to the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment, the Working Group on Enforced or

Involuntary Disappearances and the Special Rapporteur on the promotion and protection of

human rights and fundamental freedoms while countering terrorism, for appropriate action.

Ratification of the International Covenant on Civil and Political Rights

65.

The Working Group takes this opportunity to invite the Government to ratify the

International Covenant on Civil and Political Rights as a sign of its commitment to defend

the right to liberty of person and to eliminate instances of arbitrary deprivation of liberty.

The Working Group refers to its statement in an annual report (see A/HRC/19/57, para. 69)

indicating that arbitrary deprivation of liberty constitutes a violation of peremptory norms

(jus cogens) of international law that are non-derogable, a position that echoes that of the

Human Rights Committee in paragraph 11 of its general comment No. 29 (2001) on

derogations from provisions of the Covenant during a state of emergency.17

Disposition

66.

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

The deprivation of liberty of Muhammed Al Saqr, being in contravention of articles

3, 6, 8, 9, 10, 11, 12 and 16 of the Universal Declaration of Human Rights, is

arbitrary and falls within categories I and III.

67.

Consequent upon the opinion rendered, the Working Group requests the

Government of Saudi Arabia to take the steps necessary to remedy the situation of Mr. Al

Saqr without delay and bring it into conformity with the standards and principles set forth

in the international norms on detention, including the Universal Declaration of Human

Rights.

68.

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

case, the appropriate remedy would be to release Mr. Al Saqr immediately and accord him

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

international law.

69.

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

refers the allegations of enforced disappearance, torture and ill-treatment of Mr. Al Saqr to

the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment, the Working Group on Enforced or Involuntary Disappearances and the

16 See art. 7 (1) (e), (f) and (i) of the Rome Statute of the International Criminal Court. See also opinions

No. 44/2016, para. 37; No. 32/2017, para. 40; No. 33/2017, para. 102; No. 36/2017, para. 110; No.

51/2017, para. 57; and No. 56/2017, para. 72.

17 See opinion No. 59/2016, para. 69.

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11

Special Rapporteur on the promotion and protection of human rights and fundamental

freedoms while countering terrorism, for appropriate action.

Follow-up procedure

70.

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. Al Saqr has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Al Saqr;

(c)

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

Saqr’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.

71.

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

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

Group.

72.

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.

73.

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.18

[Adopted on 24 November 2017]

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