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.19-05522(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-third session, 19–23 November 2018
Opinion No. 68/2018 concerning Mohammad Abdullah Al Otaibi
(Saudi Arabia)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution
60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 4 May 2018 the
Working Group transmitted to the Government of Saudi Arabia a communication
concerning Mohammad Abdullah Al Otaibi. The Government replied to the communication
on 24 May 2018. 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/2018/68
General Assembly
Distr.: General
3 April 2019
Original: English
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2
Submissions
Communication from the source
4.
The information concerns Mohammad Abdullah Al Otaibi, born on 28 August 1968.
He is married and is currently detained in Dammam Prison, Saudi Arabia.
a.
Context
5.
According to the source, on 3 April 2013, Mr. Al Otaibi participated, along with a
group of Saudi activists, in the creation of a new human rights association called the Union
for Human Rights. The source states that the association aimed to spread and defend the
culture of human rights, to enforce its principles and values and to promote the Universal
Declaration of Human Rights and other relevant international covenants and charters.
6.
The source reports that, after the establishment of the Union for Human Rights, the
Public Prosecution launched a criminal investigation against members of the group.
It summoned Mr. Al Otaibi and three other activists for “co-founding an illegal
association”, under article 24 of the Regulation on Charitable Associations and Foundations
(Council of Ministers decision No. 107 of 1990). They were interrogated separately
between 28 April and 4 May 2013, and were denied the right to have a legal counsel
present. On 4 May 2013, the Union for Human Rights was officially obliged to halt its
activities.
7.
The source further explains that the Ministry of Islamic Affairs, which is responsible
for granting authorizations to establish associations and charities in the country on an ad
hoc basis, twice rejected the requests for registration of the Union for Human Rights, in
both May 2013 and November 2015. Furthermore, the source reports that Mr. Al Otaibi
was again summoned for questioning by the Public Prosecution office in March 2014, and
was required to sign a pledge to stop issuing statements and reports and participating in
television interviews. The Public Prosecution placed him under surveillance without
notifying him, monitoring his “compliance with the pledge”, including on his social media
accounts.
b.
Arrest and detention
8.
According to the source, on 30 October 2016, Mr. Al Otaibi was summoned before
the Specialized Criminal Court and charged with “illegally founding an association”, under
article 24 of the Regulation on Charitable Associations and Foundations; and “spreading
chaos and stirring up public opinion against the State” and “harming the reputation of the
Kingdom before the international community and human rights bodies”, under articles 12
and 39 of the Basic Law, by “preparing, signing and publishing statements on the Internet
that are harmful to the reputation of the Kingdom and of its judicial and security
institutions, with the intention of dividing national unity, and damaging the reputation of
the State and its security and stability”, in infringement of article 6 of the Anti-Cybercrime
Law. Mr. Al Otaibi was also charged under article 6 of the Anti-Cybercrime Law with
publishing (on a Twitter account) “hostile and abusive posts insulting the Kingdom and the
religious authority and aimed at disrupting the social order”.
9.
The source indicates that, on 30 March 2017, Mr. Al Otaibi fled to Qatar, in an
attempt to avoid an unfair prosecution for his peaceful human rights activism in Saudi
Arabia. Allegedly, while in Qatar, Mr. Al Otaibi sought and obtained refugee status. The
source explains that Mr. Al Otaibi was then supposed to be resettled in Norway as part of a
United Nations protection programme, but he was arrested on his way to Oslo on 24 May
2017, at Hamad International Airport in Doha. He was taken into custody by the Qatari
security forces and was then forcibly deported to Saudi Arabia on 28 May 2017.
10.
According to the source, Mr. Al Otaibi was arrested upon arrival in Riyadh by
officers of the General Directorate of Investigation (Al Mabahith) and transferred to
Dammam Prison, without being shown an arrest warrant. He was then allegedly held
incommunicado for more than two weeks and was only allowed to call his family for the
first time on 12 June 2017, despite repeated requests made by his relatives to the Saudi
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authorities. During this period, he was also denied access to medical care. Furthermore, he
was held in solitary confinement for three months.
11.
The source further claims that Mr. Al Otaibi was not brought before a judicial
authority until 12 July 2017, almost 50 days after his arrest, when the Specialized Criminal
Court resumed the proceedings against him. Until that time, he was denied access to a
lawyer.
12.
According to the source, on 25 January 2018, the court deliberated on the case in a
closed hearing and sentenced Mr. Al Otaibi on the aforementioned charges to 14 years in
prison. Mr. Al Otaibi appealed his sentence on 22 February 2018, but no date has yet been
set for a first hearing.
c.
Legal analysis
13.
The source considers that the deprivation of liberty of Mr. Al Otaibi amounts to
arbitrary detention under categories II and III.
i.
Category II
14.
The source submits that the arrest and the prosecution of Mr. Al Otaibi stem directly
from the exercise of his fundamental rights to freedom of expression and freedom of
association, enshrined in articles 19 and 20 of the Universal Declaration of Human Rights.
15.
In fact, the source reports that Mr. Al Otaibi was summoned for interrogations a few
weeks after he announced on social media the establishment of the Union for Human
Rights, and he was explicitly charged with “co-founding an illegal organization”.
16.
The source notes that despite repeated attempts to legally register the Union for
Human Rights, all requests were rejected and its members were banned from continuing
their activities as human rights defenders. In this regard, the source indicates that Saudi
Arabia lacked a legal framework for the establishment of civil society organizations until
2015, as authorizations were granted by the Ministry of Islamic Affairs on an arbitrary
ad hoc basis, effectively allowing the authorities to ban peaceful activities of groups critical
of the Government. The source claims that the situation did not change after the adoption in
November 2015 of the Law on Civil Associations and Institutions, as the case of the Union
for Human Rights clearly shows. The law considerably limits the registration of human
rights or political civil society organizations, for instance by excluding groups whose
activities “contradict public morals” or “undermine national unity”.
17.
Allegedly, Mr. Al Otaibi was further condemned for publishing reports and tweets
critical of the Government on social media, on charges related to the peaceful expression of
his opinion. In particular, he was sentenced under article 6 of the Anti-Cybercrime Law,
which punishes with up to five years in prison individuals who “produce, prepare, transmit
or store material impinging on public order, religious values, public morals and privacy”.
18.
Furthermore, the source notes that Mr. Al Otaibi was charged with “harming the
reputation of the Kingdom before the international community and human rights bodies”,
for reporting acts of torture and ill-treatment by the security forces against some detainees.
The human rights activism of Mr. Al Otaibi clearly falls within his fundamental right to
freedom of opinion and expression enshrined in and protected by article 19 of the Universal
Declaration of Human Rights.
ii.
Category III
19.
The source also submits that Mr. Al Otaibi’s detention is arbitrary due to violations
of his fair trial rights.
20.
First of all, the source submits that Mr. Al Otaibi was arrested by officers of the
General Directorate of Investigation without being shown an arrest warrant, in
contravention of principle 10 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment. The source alleges that Mr. Al Otaibi was
furthermore detained incommunicado for more than two weeks and denied all contact with
his lawyer and family. The source recalls that, by putting victims outside the protection of
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the law, incommunicado detention is a prima facie form of arbitrary detention. It constitutes
a violation of the detainee’s right to be recognized as person before the law, under article 6
of the Universal Declaration of Human Rights, and it contravenes principles 15, 16, 17, 18,
19, 37 and 38 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment.
21.
In addition, the source claims that the right of Mr. Al Otaibi to be brought promptly
before a judge was violated. The source explains that Mr. Al Otaibi was only brought
before a judge once his trial had begun, almost three months after his arrest. He was thus
denied the right to challenge the legality of his detention before a competent judicial
authority, in violation of principle 11 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
22.
Moreover, the source claims that, as mentioned above, Mr. Al Otaibi was held in
incommunicado detention for more than 20 days, which may facilitate the perpetration of
torture and other cruel, inhuman or degrading treatment or punishment and can in itself
constitute a form of torture, according to General Assembly resolution 60/148.
Furthermore, the source alleges that he was detained in prolonged solitary confinement for
the first three months of his detention. The source thus recalls that the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment has repeatedly
called upon States to ban solitary confinement as a punishment or extortion technique,
arguing that prolonged solitary confinement (i.e. exceeding 15 days) may amount to cruel,
inhuman or degrading treatment or punishment and, in certain instances, may amount to
torture. Moreover, during the first days of detention Mr. Al Otaibi was denied access to
medical care, despite his repeated requests.
23.
With regard to the conduct of the interrogations in the absence of legal counsel, the
source claims that the authorities rejected the requests of Mr. Al Otaibi to have a lawyer
present during the interrogations, which took place in April 2013 and March 2014 when he
was forced to sign pledges to stop his activities. Furthermore, Mr. Al Otaibi was denied
access to legal counsel until the beginning of his trial, in violation of principles 17 and 18
of the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
24.
Moreover, the source alleges that Mr. Al Otaibi was prosecuted in the Specialized
Criminal Court, an exceptional court with jurisdiction over cases of terrorism, which has
repeatedly targeted human rights activists and government critics under the pretext of
protecting national security. The Court is not composed of independent judges, but of a
panel appointed by the Ministry of Interior and can therefore not be considered
independent, as confirmed by the Committee against Torture in its 2016 review of Saudi
Arabia.1
25.
Furthermore, according to the source, the court deliberated on the case of
Mr. Al Otaibi in a secret hearing. The conduct of his trial is thus in clear violation of article
10 of the Universal Declaration of Human Rights, in which it is stated that “everyone is
entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge
against him”.
Response from the Government
26.
On 4 May 2018, the Working Group transmitted the source’s allegations to the
Government under its regular communication procedure, requesting the Government to
provide detailed information before 2 July 2018 concerning the current situation of
Mr. Al Otaibi and any comment on the source’s allegations. Moreover, the Working Group
called upon the Government to ensure Mr. Al Otaibi’s physical and mental integrity.
27.
According to the Government’s response of 24 May 2018, a judicial decision of
8 Jumada al-Awwal 1439 (25 January 2018) in Mr. Al Otaibi’s case, which can be
appealed, sentenced Mr. Al Otaibi to 14 years’ imprisonment and an overseas travel ban for
1 CAT/C/SAU/CO/2, paras. 17 ff.
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an equivalent duration upon his release from prison for his participation in founding an
association without permission, breaking his pledges, seeking to incite sedition and spread
chaos breaching public security, and committing crimes punishable under article 6 of the
Anti-Cybercrime Law.
Further comments from the source
28.
The response from the Government was transmitted to the source on 24 May 2018
for further comment. In its response of 31 May 2018, the source asserted that the
Government’s response was a statement of facts detailing Mr. Al Otaibi’s sentence without
addressing or refuting any of the violations alleged by the source in its communication
dated 10 April 2018.
29.
With regard to category II, the source recalls that the Union for Human Rights aims
to promote human rights. Mr. Al Otaibi and his colleagues twice tried to register the Union
for Human Rights, to no avail. Until 2015, there was no legal framework governing the
establishment of civil society organizations, with the authorization granted by the Ministry
of Islamic Affairs on an arbitrary ad hoc basis. This effectively allowed the authorities to
ban peaceful activities of groups critical of the Government. The Law on Civil Associations
and Institutions, of November 2015, similarly restricted the registration of human rights
organizations, for instance by excluding groups whose activities “contradict public morals”
or “undermine national unity”.
30.
The source reasserts that, given the de facto impossibility of Mr. Al Otaibi
registering the Union for Human Rights, the Government acted in violation of his
fundamental right to freedom of association as enshrined in article 20 (1) of the Universal
Declaration of Human Rights.
31.
The source adds that the charges brought against Mr. Al Otaibi relate to the
publication of reports and tweets critical of the Government on social media networks, and
as such, they clearly result from the peaceful exercise of his right to freedom of opinion and
expression enshrined in article 19 of the Universal Declaration of Human Rights.
32.
With regard to category III, the source states that the Government does not address
or refute the source’s allegations in relation to the severe violation of fair trial guarantees.
33.
As the source has asserted earlier, Mr. Al Otaibi’s trial did not meet international
fair trial standards. This is because he was arbitrarily arrested and held incommunicado,
denied the right to challenge the legality of his detention before a competent authority,
subjected to ill-treatment by being held in prolonged solitary confinement, and interrogated
without legal counsel, and his trial was held in camera before an exceptional court.
34.
Lastly, the source submits that Mr. Al Otaibi’s incarceration is part of larger pattern
of arbitrary detention in Saudi Arabia, characterized by seriously flawed trials and severe
restrictions on freedom of expression and freedom of association.2
Discussion
35.
The Working Group thanks the source and the Government for their submissions in
relation to Mr. Al Otaibi.
36.
In determining whether Mr. Al Otaibi’s deprivation of liberty is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented 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. Mere assertions by the
2 The source refers to the fact that, since 2012, the Working Group has adopted 18 separate opinions in
which it has declared the detention of individuals by the Government arbitrary due to non-observance
of international fair trial norms and/or as a result of exercising their rights to freedom of expression,
opinion or association. See opinions Nos. 93/2017, 63/2017, 47/2017, 10/2017, 61/2016, 52/2016,
38/2015, 13/2015, 32/2014, 14/2014, 46/2013, 45/2013, 44/2013, 32/2013, 53/2012, 52/2012 and
8/2012.
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Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations (A/HRC/19/57, para. 68).
37.
The Working Group wishes to reaffirm that the Government has the obligation to
respect, protect and fulfil the right to liberty of person and that any national law allowing
deprivation of liberty should be made and implemented in conformity with the relevant
international standards set forth in the Universal Declaration of Human Rights and other
applicable international or regional instruments.3 Consequently, even if the detention is in
conformity with national legislation, regulations and practices, the Working Group is
entitled and obliged to assess the judicial proceedings and the law itself to determine
whether such detention is also consistent with the relevant rules and standards of
international human rights law.4
Category I
38.
The Working Group will consider whether there have been violations under
category I, which concerns deprivation of liberty without any legal basis being invoked.
39.
The source submits, and the Government does not refute, that Mr. Al Otaibi was
arrested upon arrival in Riyadh from Qatar by officers of the General Directorate of
Investigation (Al Mabahith) and transferred to Dammam Prison without being presented
with an arrest warrant. The international norms on detention include the right to be
presented with an arrest warrant, which is procedurally inherent in the right to liberty and
security of person and the prohibition of arbitrary deprivation, under articles 3 and 9
respectively of the Universal Declaration of Human Rights, as well as under principles 2, 4
and 10 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.5 Any form of detention or imprisonment should be ordered by,
or be subjected 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 for
the Protection of All Persons under Any Form of Detention or Imprisonment.
40.
The Working Group also notes that Mr. Al Otaibi was not brought promptly before a
judge or afforded the right to take proceedings before a court so that it may decide without
delay on the lawfulness of his detention. In fact, he was not brought before a judicial
authority until 12 July 2017, almost 50 days after his arrest. This also deprived him of the
right to challenge the legality of his detention, in violation of articles 8 and 10 of the
Universal Declaration of Human Rights. Pretrial detention without an individualized
determination of the risk of flight, of interference with the evidence or of recurrence of the
crime, as well as consideration of less intrusive alternatives, such as bail, electronic
bracelets or other conditions in accordance with the principle of necessity and
proportionality, is devoid of legal basis.6
41.
The Working Group therefore considers that Mr. Al Otaibi’s arrest and detention for
the first 50 days, in violation of articles 3, 8, 9 and 10 of the Universal Declaration of
Human Rights, lack a legal basis and are thus arbitrary, falling under category I.7
3 See General Assembly resolution 72/180, fifth preambular paragraph; Commission on Human Rights
resolutions 1991/42, para. 2, and 1997/50, para. 15; Human Rights Council resolutions 6/4,
para. 1 (a), and 10/9, para. 4 (b); and opinions No. 38/2018, para. 60; No. 94/2017, para. 59;
No. 88/2017, para. 32; No. 83/2017, paras. 51 and 70; No. 76/2017, para. 62; No. 28/2015, para. 41;
and No. 41/2014, para. 24.
4 See opinions No. 38/2018, para. 60; No. 94/2017, paras. 47–48; No. 33/2015, para. 80; No. 1/2003,
para. 17; No. 5/1999, para. 15; and No. 1/1998, para. 13.
5 See opinions No. 30/2018, para. 39; No. 3/2018, para. 43; and No. 88/2017, para. 27. See also
art. 14 (1) of the Arab Charter on Human Rights.
6 See opinion No. 61/2018, para. 50.
7 See also arts. 12, 13 (1) and (2), 14 (1), (2), (5) and (6) and 23 of the Arab Charter on Human Rights.
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Category II
42.
The Working Group recalls that the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression has reiterated that the right to
freedom of expression includes expression of views and opinions that offend, shock or
disturb.8 In addition, the Human Rights Council, in its resolution 12/16, paragraph 5 (p) (i),
stated that restrictions on the discussion of government policies and on political debate
were not consistent with article 19 (3) of the Covenant, which is based on articles 18 and 19
of the Universal Declaration of Human Rights.
43.
The source submits, and the Government does not address the matter or refute, that
Mr. Al Otaibi was convicted and sentenced for his critical reports and tweets on social
media under article 6 of the Anti-Cybercrime Law, which carries a maximum term of five
years’ imprisonment for those who “produce, prepare, transmit or store material impinging
on public order, religious values, public morals and privacy”. He was also charged with
“harming the reputation of the Kingdom before the international community and human
rights bodies” for reporting acts of torture and ill-treatment by the security forces. In this
regard, the Working Group is convinced that Mr. Al Otaibi’s detention and imprisonment
for his critical online and offline comments clearly resulted from the exercise of his right to
freedom of thought and conscience and his right to freedom of opinion and expression,
guaranteed in articles 18 and 19 of the Universal Declaration of Human Rights.
44.
The Working Group expresses its concern at the Government’s persecution of
Mr. Al Otaibi and his colleagues for their attempts to register the Union for Human Rights.
Mr. Al Otaibi was specifically charged with “co-founding an illegal organization”. The
Government provided no justifiable grounds for refusing the registration of the Union for
Human Rights. This also leads the Working Group to conclude that Mr. Al Otaibi’s
prosecution and conviction for his attempts to co-found the Union for Human Rights were
conducted in contravention of his fundamental rights to freedom of opinion and expression,
freedom of thought and conscience, and freedom of association.
45.
The Working Group therefore considers that Mr. Al Otaibi’s deprivation of liberty is
arbitrary under category II, as it resulted from his exercise of the rights and freedoms
guaranteed under articles 18, 19 and 20 of the Universal Declaration of Human Rights.9
Category III
46.
Given its finding that Mr. Al Otaibi’s deprivation of liberty is arbitrary under
category II, the Working Group wishes to emphasize that in such circumstances no trial
should take place. However, as the trial has taken place, the Working Group will now
consider whether the alleged violations of the right to a fair trial and due process were
grave enough to give his deprivation of liberty an arbitrary character, so that it falls within
category III.
47.
The Working Group considers that the absence of legal counsel for Mr. Al Otaibi
during the interrogations, in April 2013 and March 2014, at which time Mr. Al Otaibi was
forced to sign pledges to stop his activities, and the denial to him of access to a lawyer until
the beginning of his trial, violated his rights to a fair trial and due process under articles 10
and 11 (1) of the Universal Declaration of Human Rights and principles 17 and 18 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.10
48.
The Working Group notes that Mr. Al Otaibi was detained incommunicado for more
than two weeks and denied all contact with his lawyer and family.11 The Working Group
recalls that incommunicado detention constitutes a violation of the detainee’s right to be
recognized as person before the law, in breach of article 6 of the Universal Declaration of
Human Rights and principles 15, 16, 17, 18, 19, 37 and 38 of the Body of Principles for the
8 See A/HRC/17/27, para. 37.
9 See also arts. 24 (5) and (6), 30 and 32 of the Arab Charter on Human Rights.
10 See also art. 16 (2), (3), (5) and (6) of the Arab Charter on Human Rights.
11 See art. 14 (3) of the Arab Charter on Human Rights.
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Protection of All Persons under Any Form of Detention or Imprisonment, and that the
refusal to disclose his fate or whereabouts violated his right not to be forcibly disappeared.12
49.
Such practice, by putting victims outside the protection of the law, has the effect of
posing a serious challenge to Mr. Al Otaibi’s exercise of his right to a fair trial and due
process. The Working Group is also concerned that it may have facilitated the perpetration
of torture and other cruel, inhuman or degrading treatment or punishment, and can in itself
constitute a form of torture according to General Assembly resolution 60/148, thereby
making Mr. Al Otaibi’s exercise of fair trial rights either impossible or difficult.
50.
Furthermore, the Working Group recalls that Mr. Al Otaibi was detained in
prolonged solitary confinement for the first three months of his detention. The Working
Group wishes to note that the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment has repeatedly called upon States to ban solitary
confinement as a punishment or extortion technique, arguing that prolonged solitary
confinement (i.e. exceeding 15 days) may amount to cruel, inhuman or degrading treatment
or punishment and, in certain instances, may amount to torture. In this regard, the Working
Group also stresses that prolonged solitary confinement, in certain instances, may amount
to torture, in violation of article 5 of the Universal Declaration of Human Rights.13
51.
The Working Group expresses its concern about the Specialized Criminal Court that
has jurisdiction over terrorism cases, which tried, convicted and sentenced Mr. Al Otaibi.
The Working Group understands that the Specialized Criminal Court is an exceptional
court set up to try cases of terrorism, which repeatedly targets human rights activists and
critics of the Government under the pretext of protecting national security. The Court is not
composed of independent judges but of a panel appointed by the Ministry of Interior and
can therefore not be considered independent, as confirmed by the Committee against
Torture in its 2016 review of Saudi Arabia.14
52.
Furthermore, the Working Group considers, and the Government does not address
the matter or refute, that Mr. Al Otaibi was subjected to in camera hearings before the
Specialized Criminal Court, in violation of his right to a public hearing under articles 10
and 11 (1) of the Universal Declaration of Human Rights.
53.
In view of the above, the Working Group concludes that the violations of the right to
a fair trial and due process, affirmed in articles 10 and 11 (1) of the Universal Declaration
of Human Rights, are of such gravity as to give the deprivation of liberty of Mr. Al Otaibi
an arbitrary character that falls within category III.
54.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on the situation of human rights defenders,
the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and
of association, the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment and the Special Rapporteur on the independence of judges and
lawyers, for appropriate action.
International obligation to observe the principle of non-refoulement
55.
While the source has brought no formal complaint against Qatar with respect to
Mr. Al Otaibi’s arrest and subsequent deportation to Saudi Arabia, the Working Group
notes that, after extending him hospitality as a political refugee and assuring him safe
12 See also art. 22 of the Arab Charter on Human Rights, and the references to the right to life, the right
to liberty and security of person, the right not to be subjected to torture and the right to recognition as
a person before the law in the Declaration on the Protection of All Persons from Enforced
Disappearance.
13 See also art. 8 of the Arab Charter on Human Rights.
14 CAT/C/SAU/CO/2, paras. 17 ff.
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passage to Norway, the Qatari hosts delivered Mr. Al Otaibi to the authorities of Saudi
Arabia.15
56.
The Working Group will not specifically discuss the international responsibility of
Qatar in the present case, but it wishes to recall the international obligations concerning the
principle of non-refoulement.
57.
In this context, the Working Group recalls that the expulsion of a refugee is
prohibited “where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion”. 16 Moreover,
article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, to which both Qatar and Saudi Arabia are parties, stipulates that
no State party shall expel, return or extradite a person to another State where there are
substantial grounds for believing that he or she would be in danger of being subjected to
torture, and that the competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned of a consistent pattern of
gross, flagrant or mass violations of human rights, for the purpose of determining whether
there are such grounds.
58.
As the Working Group has previously observed, international law regarding
extradition provides procedures that must be observed by countries in arresting, detaining
and returning individuals to face criminal proceedings in another country and in ensuring
that their right to a fair trial is protected.17
59.
Moreover, it is thus incumbent upon governments and authorities to respect, protect
and fulfil the right to personal liberty by exercising due diligence to prevent expulsion,
return or extradition of a person to another State where there are substantial grounds for
believing that he or she would be in danger of being subjected to arbitrary deprivation of
liberty, and by taking into account all relevant considerations including, where applicable,
the existence in the State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights, for the purpose of determining whether there are such grounds.18
60.
With respect to Saudi Arabia, the Working Group notes that the present opinion is
only one of several opinions in which the Working Group has found the Government in
violation of its international human rights obligations.19 The Working Group is concerned
that this indicates a systemic problem with arbitrary detention in Saudi Arabia, which
amounts to a serious violation of international law. The Working Group recalls that under
certain circumstances, widespread or systematic imprisonment or other severe deprivation
15 The Working Group welcomes the subsequent accession by Qatar to the two Covenants, and
recommends the ratification of their Optional Protocols.
16 Art. 42 of the Convention relating to the Status of Refugees, of 1951, explicitly disallows any
reservations to art. 33 of the same Convention. See also the 1967 Protocol relating to the Status of
Refugees, and art. 3 of the Convention relating to the International Status of Refugees, of 1933,
as well as the technical note on the principle of non-refoulement under international human rights
law, prepared by the Office of the United Nations High Commissioner for Human Rights for the
intergovernmental negotiations on the global compact for migration being held in January–July 2018,
available from www.ohchr.org/EN/Issues/Migration/Pages/GlobalcompactforMigration.aspx.
17 See, for example, opinions No. 2018/11, No. 2/2015 and No. 57/2013.
18 See opinions No. 56/2016, paras. 55–60; and No. 53/2016, paras. 59–63. See also A/HRC/4/40,
paras. 44–45.
19 The Working Group found the deprivation of liberty of the person concerned to be arbitrary in its
decisions No. 40/1992, No. 60/1993, No. 19/1995 and No. 48/1995, and in its opinions No. 8/2002,
No. 25/2004, No. 34/2005, No. 35/2005, No. 9/2006, No. 12/2006, No. 36/2006, No. 37/2006,
No. 4/2007, No. 9/2007, No. 19/2007, No. 27/2007, No. 6/2008, No. 11/2008, No. 13/2008,
No. 22/2008, No. 31/2008, No. 36/2008, No. 37/2008, No. 21/2009, No. 2/2011, 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, No. 44/2011, No. 45/2011, No. 8/2012, No. 22/2012,
No. 52/2012, No. 53/2012, No. 32/2013, No. 44/2013, No. 45/2013, No. 46/2013, No. 14/2014,
No. 32/2014, No. 13/2015, No. 38/2015, No. 52/2016, No. 61/2016, No. 10/2017, No. 63/2017,
No. 93/2017 and No. 10/2018.
A/HRC/WGAD/2018/68
10
of liberty in violation of the rules of international law may constitute crimes against
humanity.
Disposition
61.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mohammad Abdullah Al Otaibi, being in contravention
of articles 3, 6, 8, 9, 10, 11, 18, 19 and 20 of the Universal Declaration of Human
Rights, is arbitrary and falls within categories I, II and III.
62.
The Working Group requests the Government of Saudi Arabia to take the steps
necessary to remedy the situation of Mr. Al Otaibi without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights.
63.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Al Otaibi immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
64.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Al
Otaibi and to take appropriate measures against those responsible for the violation of his
rights.
65.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on the situation of human rights defenders,
the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and
of association, the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment and the Special Rapporteur on the independence of judges and
lawyers, for appropriate action.
66.
The Working Group recommends the Government to ratify the two International
Covenants on Human Rights and their Optional Protocols.
67.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
68.
The Working Group transmits the present opinion to the Government of Qatar for its
consideration.
Follow-up procedure
69.
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 Otaibi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Al Otaibi;
(c)
Whether an investigation has been conducted into the violation of Mr.
Al Otaibi’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.
70.
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.
A/HRC/WGAD/2018/68
11
71.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of 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.
72.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and has 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.20
[Adopted on 20 November 2018]
20 See Human Rights Council resolution 33/30, paras. 3 and 7.