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.19-17366(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fourth session, 24 April–3 May 2019
Opinion No. 26/2019 concerning Abdelkarim Mohamed Al Hawaj and
Mounir Abdullah Ahmad Aal Adam (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 2 August 2018 the
Working Group transmitted to the Government of Saudi Arabia a communication
concerning Abdelkarim Mohamed Al Hawaj and Mounir Abdullah Ahmad Aal Adam. The
Government replied to the communication on 28 September 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/2019/26
General Assembly
Distr.: General
9 October 2019
Original: English
A/HRC/WGAD/2019/26
2
Submissions
Communication from the source
4.
Abdelkarim Mohamed Al Hawaj was born on 19 November 1995 and usually
resides in Al Mishari, in Al Qatif region, Eastern Province. He was a minor when the
protests related to his case took place.
5.
Mounir Abdullah Ahmad Aal Adam was born on 24 August 1992 and usually
resides in Al Awamiyah, also in Al Qatif region, Eastern Province. According to the source,
he suffers from a visual and auditory disability.
(a)
Arrest and detention of Mr. Al Hawaj
6.
The source reports that on 17 January 2014 Mr. Al Hawaj – aged 19 at the time –
was arrested at a checkpoint in Al Qatif by members of the intelligence services (Al
Mabahith). Those officers failed to inform Mr. Al Hawaj of the reasons for his arrest and
did not show a warrant.
7.
Following his arrest, Mr. Al Hawaj was allegedly forcibly disappeared for five
months. In addition to being held in solitary confinement during that period, he was
subjected to various forms of torture. Officers allegedly tied him up, beat him on different
parts of his body and pulled out his toenails. He was denied the use of the bathroom. It is
also alleged that officers forced him, by threatening to kill his family members, to sign
written confessions admitting his participation in an illegal protest in Al Qatif.
8.
Five months after his arrest, Mr. Al Hawaj was reportedly transferred to the prison
of the General Directorate of Investigations in Dammam, where his family was allowed to
visit him for the first time. Since then, his family has been allowed to visit him, on and off,
once a month.
(b)
Charge and trial of Mr. Al Hawaj
9.
Mr. Al Hawaj’s trial before the Specialized Criminal Court commenced on 31
March 2016. The source points out that the Court, established in 2008 by the Ministry of
the Interior, is a court of exception that has jurisdiction to try cases of terrorism and that has
prosecuted human rights activists and peaceful political dissidents on the grounds of
protecting national security. The Court is composed by a panel appointed by the Ministry of
the Interior and cannot be considered independent.
10.
During his trial, Mr. Al Hawaj was informed for the first time of the charges against
him. They included: “throwing two Molotov cocktails at Al Qatif General Court, which
resulted in some parts of it being burned down”, in alleged violation of article 15 of the law
on explosives and fireworks and of Council of Senior Scholars decision No. 148;1 “burning
tyres and placing them in the middle of the street with the intention of blocking the way,
disrupting security and preventing the security services from carrying out their duties”, in
alleged violation of article 7 of the law on combating bribery; “participating in protests and
demonstrations”, “chanting anti-government slogans”, “sharing photos and videos about the
protests in Al Qatif and Bahrain on the social media applications WhatsApp and Zello, as
well as using them to publicize the locations of gatherings, to harm the rulers of the country
through insults and curses and to warn others about the location of security checkpoints”
and “interfering in the internal affairs of a neighbouring and brotherly State (Bahrain) by
showing sympathy and support for troublemakers within it”, in alleged violation of article
12 of the Basic Law and article 7 (1) of the law on cybercrime.
11.
The source underlines that all events referenced in the charges took place when Mr.
Al Hawaj was 16 years old.
1 The source informs that the Council of Senior Scholars is the highest religious authority in Saudi
Arabia and advises the King on religious matters. It issues religious rulings or “fatwas” and responds
to questions submitted to it in order to clarify issues of Islamic belief and practice. The Council’s
decision No. 148 provides for the possibility of punishment by death.
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12.
Mr. Al Hawaj’s lawyer was reportedly denied access to the case file from the
moment of his arrest and throughout his trial. Mr. Al Hawaj was not assisted by legal
counsel during his interrogation or during his trial because his lawyer was threatened by the
Specialized Criminal Court to drop the case. According to the source, this is common in
Saudi Arabia, as lawyers defending individuals in political cases are perceived to be
disloyal to the State.
13.
When Mr. Al Hawaj’s relatives complained before the judge that his confessions had
been extracted under torture, the judge reportedly requested that they prove their claims and
threatened to arrest them if they continued to make such allegations.
14.
The source reports that on 28 July 2016 the Specialized Criminal Court issued its
verdict convicting Mr. Al Hawaj of all charges and sentenced him to death.
15.
Mr. Al Hawaj’s death sentence was reportedly upheld by the Supreme Court of
Saudi Arabia in a final ruling, not subject to appeal, on 11 September 2017. On the same
day, Mr. Al Hawaj’s family was informed that the execution order had been signed but did
not receive a copy of it.
(c)
Conditions of detention during Mr. Al Hawaj’s appeal
16.
Between 12 July and 23 September 2017, Mr. Al Hawaj was transferred to Al Ha’ir
Prison in Riyadh so that he could attend his appeal hearings. However, prison officers did
not allow him to attend those hearings and told Mr. Al Hawaj’s lawyer that there would be
no hearings. Mr. Al Hawaj was held incommunicado for the vast majority of that period.
He was only permitted to make one short telephone call to his family on 31 August.
17.
The source alleges that while in Al Ha’ir Prison, Mr. Al Hawaj was subjected to
torture and ill-treatment, including by being held in solitary confinement for the entire
period, having his food thrown at him and being forced to sleep on the floor.
Arrest and detention of Mr. Aal Adam
18.
The source reports that on 10 April 2012 Mr. Aal Adam was arrested at a shop in the
village of Al Awamiyah, in the Eastern Province, by intelligence officers dressed in civilian
clothes.
19.
The officers reportedly failed to inform Mr. Aal Adam of the reasons for his arrest
and did not show a warrant. Mr. Aal Adam was then taken to Al Qatif police station, where
he was interrogated without a lawyer being present and allegedly tortured. He was
subjected to flogging so severe that he could not stand up for several days.
20.
Two weeks after his arrest, Mr. Aal Adam was transferred to the prison of the
General Directorate of Investigations in Dammam. During the first three months of his
imprisonment, Mr. Aal Adam was allegedly forcibly disappeared. In an attempt to
determine his whereabouts, his family filed complaints with the prison administration and
the Ministry of the Interior, to no avail.
21.
During that three-month period, Mr. Aal Adam was allegedly subjected to torture
and ill-treatment. Intelligence officers allegedly electrocuted different parts of his body and
subjected him to severe beatings, to the extent that he became completely deaf in one ear.
They forced him, by threatening him with more torture and with the arrest of family
members, to sign and fingerprint a pre-written confession, which he was not allowed to
read, acknowledging that he had participated in illegal gatherings in Al Qatif in 2012.
22.
Mr. Aal Adam was reportedly held in solitary confinement for the entire three
months of his disappearance, and for an additional month thereafter. While in solitary
confinement, he was often deprived of food and sleep. After his reappearance, Mr. Aal
Adam was held incommunicado for three months.
23.
The source also reports that Mr. Aal Adam was denied legal counsel during his
interrogation. In addition, his lawyer did not have access to the case file and only
represented him during the first three trial hearings, after which the Court threatened him
into dropping the case.
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24.
According to the source, despite his repeated requests and despite the pre-existing
hearing disability, which made him particularly vulnerable to further harm, Mr. Aal Adam
was only examined by a prison doctor two years after his arrest. His medical records show
that during that period he lost all hearing in one ear, which is believed to be the result of
torture.
(d)
Charges and trial of Mr. Aal Adam
25.
In September 2015, Mr. Aal Adam was tried before the Specialized Criminal Court
and informed of the charges against him for the first time. These included: “participating in
and organizing demonstrations in Al Qatif”, “stopping cars when the light was green, while
chanting anti-government slogans”, “marching in demonstrations with a rifle in anticipation
of attacks by the Saudi air forces”, “shooting said rifle at security forces and then fleeing”,
“planning with others to shoot at Al Awamiyah police station”, “shooting at Al Awamiyah
police station”, “shooting at Al Awamiyah police station from the back in order to disperse
and distract the security forces stationed on the roof”, “signalling for another terrorist group
to begin shooting at Al Awamiyah police station”,2 “throwing rocks at Al Awamiyah police
station and covering for someone who was shooting at security forces during this period
and on another occasion” and “allowing the aforementioned individual to ride with him on
his motorbike, with his weapon and taking him to two other locations”.
26.
According to the source, Mr. Aal Adam was allowed to consult his lawyer only once,
during his second hearing. The lawyer was then threatened by the Court to drop the case
during the third hearing.
27.
When Mr. Aal Adam stated that his confessions were being extracted under torture,
the judge reportedly demanded that he should prove his claim. The defence lawyer
consequently requested that the interrogation videotapes be admitted as evidence but the
request was denied.
28.
On 1 June 2016, the Specialized Criminal Court sentenced Mr. Aal Adam to death
for having committed the above-mentioned charges and for violating the sharia principle of
ta’zir. Since ta’zir crimes and the punishments they may incur are not codified, judges have
a margin of discretion as to which crimes fall under this category and how they should be
punished.
29.
The source reports that Mr. Aal Adam’s sentence was upheld by both the Court of
Appeals and the Supreme Court, on 25 May and 23 July 2017 respectively, and is not
subject to further appeal.
(e)
Legal analysis
(i)
Category I
30.
The source submits that the detention of Messrs. Al Hawaj and Aal Adam falls
under category I, as the two men were arrested without being presented with warrants or
any reason for their arrest. The circumstances of their arrest do not constitute flagrante
delicto and they were informed of the charges once their trials had started. The source
argues that Mr. Al Hawaj’s detention from 17 January 2014 to 31 March 2016 was not
based in law and that Mr. Aal Adam’s detention from 10 April 2012 to September 2015
lacked any legal basis, in violation of article 9 of the Universal Declaration of Human
Rights.
31.
The source adds that Messrs. Al Hawaj and Aal Adam were both subjected to
enforced disappearance and held incommunicado. Both were placed outside the protection
of the law and were deprived of their legal safeguards, including their right to challenge the
legality of their detention and to be recognized as persons before the law.
2 According to the source, the authorities did not specify exactly which terrorist organization.
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(ii)
Category II
32.
The source alleges that the detention of Messrs. Al Hawaj and Aal Adam is a direct
consequence of the exercise of their fundamental rights to freedom of expression and
peaceful assembly.3 They were convicted for sharing information about, and showing
support for, anti-government protests, acts allegedly falling within their right to freedom of
expression under article 19 of the Universal Declaration of Human Rights.
33.
With regard to Mr. Al Hawaj, who was 16 years old at the time of the protests, the
source submits that Saudi Arabia violated its obligations under article 13 (1) of the
Convention on the Rights of the Child. In relation to Mr. Aal Adam, the Saudi authorities
allegedly disregarded their obligations under article 21 of the Convention on the Rights of
Persons with Disabilities.
34.
The source adds that Messrs. Al Hawaj and Aal Adam were also charged and
convicted for “participating in protests” and “organizing demonstrations”. The source
submits that these charges refer to acts that clearly fall within the right to peaceful assembly,
enshrined in article 20 (1) of the Universal Declaration of Human Rights, and, in relation to
Mr. Al Hawaj, in article 15 of the Convention on the Rights of the Child.
35.
The source also submits that the laws used to sentence Messrs. Al Hawaj and Aal
Adam do not meet international standards of legal certainty, as article 12 of the Basic Law
provides that the consolidation of national unity is a duty, and the State will prevent
anything that may lead to disunity, sedition and separation. The source argues that such
vague wording allows for the criminalization of acts of peaceful dissent. Likewise, the
sharia principle of ta’zir used to sentence Mr. Aal Adam is not codified, allowing a
significant margin of interpretation for judges to punish peaceful dissent with death
sentences.
36.
Finally, the source alleges that there is no evidence that proves their involvement in
any act of violence and that gatherings and demonstrations must be presumed peaceful
under international law (A/HRC/31/66, para. 18). Even isolated acts of violence during a
demonstration do not strip a protest of its peaceful character and should not be used to
prosecute peaceful participants.
(iii)
Category III
Enforced disappearance and incommunicado detention
37.
Messrs. Al Hawaj and Aal Adam were allegedly not presented with a warrant, nor
were they given reasons for their arrest, in violation of principle 10 of the Body of
Principles for the Protection of All Persons under any Form of Detention or Imprisonment.
In the case of Mr. Aal Adam’s detention, this circumstance contravenes article 14 (1) (b) of
the Convention on the Rights of Persons with Disabilities.
38.
Messrs. Al Hawaj and Aal Adam were reportedly also put in a state of enforced
disappearance and held incommunicado. The source recalls that both are prima facie forms
of arbitrary detention and constitute a violation of the right of a detainee to be considered a
person before the law, in contravention of article 6 of the Universal Declaration of Human
Rights. In Mr. Aal Adam’s case, they also violate the obligations of Saudi Arabia under
article 12 (1) of the Convention on the Rights of Persons with Disabilities. The source also
recalls that enforced disappearance enables torture and can in itself constitute a form of
torture.4 As such, the enforced disappearance of Messrs. Al Hawaj and Mr. Aal Adam
allegedly violates the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
3 The source refers to opinions No. 52/2016 and No. 61/2016.
4 CAT/C/54/D/456/2011, para. 6.4.
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Right to habeas corpus and to be promptly brought before a judge
39.
Messrs. Al Hawaj and Aal Adam were reportedly brought before a judicial authority
for the first time during their trials, two and three years after their arrest. The source
submits that this violates principles 11 and 37 of the Body of Principles.
40.
As a consequence, Messrs. Al Hawaj and Aal Adam were also unable to challenge
the lawfulness of their detention, in violation of their right to habeas corpus. In that respect,
the source recalls that the Working Group recognizes habeas corpus as being, in itself, a
self-standing human right stemming from articles 8, 9 and 10 of the Universal Declaration
of Human Rights (A/HRC/19/57, paras. 59 and 77).
Torture and coerced confessions
41.
Messrs. Al Hawaj and Aal Adam were allegedly subjected to torture and cruel,
inhuman and degrading treatment, in violation of the obligations of Saudi Arabia under the
Convention against Torture. They were reportedly held in solitary confinement, for four
and nearly eight months respectively, which might have facilitated the perpetration of
torture and other cruel, inhuman or degrading treatment or punishment and could in itself
constitute a form of such treatment.5
42.
According to the source, the facts demonstrate that the security forces used torture
with the intention of coercing Messrs. Al Hawaj and Aal Adam into signing pre-written
self-incriminating statements. This contravenes the absolute prohibition of torture enshrined
in articles 2 and 16 of the Convention against Torture and article 5 of the Universal
Declaration of Human Rights.
43.
The confessions extracted from Messrs. Al Hawaj and Aal Adam under torture were
allegedly admitted as evidence despite the fact that both men had informed the judicial
authorities that the confessions had been extracted under torture and that they had not been
allowed to read them beforehand, in contravention of article 15 of the Convention against
Torture. The source also highlights that, instead of ordering an investigation into the
allegations, the judges of the Specialized Criminal Court requested that the victims prove
that they had been tortured and threatened their families to stop making the allegations.
These actions allegedly contravene the obligations of Saudi Arabia under article 13 of the
Convention against Torture, principle 33 (4) of the Body of Principles and rules 56 (3) and
57 (2) and (3) of the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules).
Denial of access to medical treatment
44.
Despite repeatedly asking to be examined by a doctor, Mr. Aal Adam was only
given access to medical care two years after his initial arrest, allegedly in violation of the
obligations of Saudi Arabia under article 25 (b) of the Convention on the Rights of Persons
with Disabilities. Such a prolonged period exceeds the time frame set out in both principle
24 of the Body of Principles and rule 30 of the Nelson Mandela Rules, which stipulate that
a medical examination should take place as promptly as possible.
Trial before a court of exception
45.
The source reports that Messrs. Al Hawaj and Aal Adam were both prosecuted
before the Specialized Criminal Court, which is composed of a panel appointed by the
Ministry
of
the
Interior,
lacking
independence
(CAT/C/SAU/CO/2
and
CAT/C/SAU/CO/2/Corr.1, paras. 17–18). As such, the Ministry of the Interior is allegedly
both judge and party to a trial that cannot be impartial or respect due process, in
contravention of article 10 of the Universal Declaration of Human Rights.
Denial of right to legal counsel
46.
The source asserts that Mr. Al Hawaj was denied access to legal counsel during his
interrogation and throughout his trial. Mr. Aal Adam was allowed to consult with his
5 General Assembly resolution 60/148, para. 11.
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lawyer once only, during his second hearing, and was only represented by legal counsel
during his first three hearings.
47.
The source submits that the threats faced by the lawyers, which led them to drop the
cases, coupled with the fact that they were not able to present all their evidence, contravene
the principle of equality of arms. This situation also violates principle 18 (3) of the Body of
Principles and rule 61 (1) of the Mandela Rules, both of which stipulate that defendants
must have access to legal counsel without delay. Messrs. Al Hawaj and Aal Adam were
also denied the time and facilities necessary to prepare their defence, violating article 11 of
the Universal Declaration of Human Rights and principle 18 (2) of the Body of Principles.
The absence of a contradictory debate contravened their right to be presumed innocent, as it
made it impossible for them to challenge the prosecution’s evidence.
Imposition of the death penalty
48.
The source notes that the death penalty may be imposed only for the most serious
crimes.6 The source also notes that both death sentences were handed down for protest-
related charges, in other words for actions directly related to the exercise of the right to
freedom of peaceful assembly and association. As Messrs. Al Hawaj and Aal Adam were
not convicted of causing an intentional loss of life, the crimes allegedly committed do not
fall within the category of “most serious crimes” (A/HRC/4/20, para. 53).
49.
In relation to Mr. Al Hawaj, the source recalls that article 37 of the Convention on
the Rights of the Child, paragraph 43 (a) of General Assembly resolution 63/241 and
paragraph 11 of Human Rights Council resolution 10/2 set out a prohibition on the
imposition of the death penalty for offences committed by persons under the age of 18.7
The Committee on the Rights of the Child, referring to the case of Mr. Al Hawaj
specifically, among others, has urged the State party to immediately halt the execution of
people who were below the age of 18 at the time of the alleged commission of the offence
(CRC/C/SAU/CO/3-4, para. 21).
50.
Finally, the source argues that the imposition of the death penalty following an
unfair trial that does not meet international standards amounts to arbitrary deprivation of
life, in violation of article 3 of the Universal Declaration of Human Rights and article 5 of
the Arab Charter on Human Rights. Moreover, in relation to Mr. Al Hawaj, it also
contravenes article 6 (1) of the Convention on the Rights of the Child and, with regard to
Mr. Aal Adam, article 10 of the Convention on the Rights of Persons with Disabilities.8
51.
The source submits that the non-observance of the international norms relating to the
right to a fair trial gives Messrs. Al Hawaj and Aal Adam’s deprivation of liberty an
arbitrary character under category III.
(iv)
Category V
52.
The source submits that Messrs. Al Hawaj and Aal Adam were subjected to unfair
trials, as well as to torture and other cruel, inhuman and degrading treatment, as a direct
result of their religious beliefs as members of the Shiite minority.
53.
In that respect, the source notes that Saudi Arabia is a Sunni majority country that
adheres to Wahabism and allegedly has historically discriminated against the Shiite
minority in the Eastern Province. Shiite Muslims are perceived to be a deviant sect with
diverging religious practices.
54.
The source notes that the Saudi authorities have reportedly allowed religious leaders
to refer to the Shiite minority in derogatory terms and vilify them in official documents,
including those often cited in courts. Government officials, including scholars and clerics,
have made pejorative comments about the Shiite community on social media. These
6 Safeguards guaranteeing protection of the rights of those facing the death penalty (Economic and
Social Council resolution 1984/50, annex).
7 See also the Committee on the Rights of the Child general comment No. 10 (2007) on children’s
rights in juvenile justice.
8 See also A/HRC/14/24, para. 51 (a).
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comments have sometimes met the threshold for hate speech or incitement to hatred or
discrimination.
55.
The Council of Senior Scholars has issued at least seven fatwas and publicly
responded to questions in a manner that is derogatory to the Shiite community. The source
argues that given the Council’s reach and influence, such statements play a key role in
bolstering systematic discrimination against the Shiite minority and inciting violence
against them.
56.
According to the source, after analysing 10 separate trial judgments of Shias accused
of protest-related crimes, Human Rights Watch found that “detainees alleged that
confessions were extracted through torture, but judges quickly dismissed these allegations
without investigation, admitted the confessions as evidence, and then convicted the
detainees almost solely on the basis of these confessions, sometimes handing down death
sentences”.9 Reportedly, of the 96 death sentences handed down in Saudi Arabia between
2013 and 2016, 38–40 per cent were given to members of the Shiite community on account
of their participation in demonstrations. The Shiite minority constitutes 10–15 per cent of
the population.10
57.
The source notes that members of the Shiite community are often tried in mass trials
and sentenced to death on the basis of vague offences that frequently violate their rights to
freedom of expression and peaceful assembly. In 2016, 24 demonstrators were put on trial
and 14 of them received the death penalty. In another case, the Shiite sheikh Nimr Al Nimr,
who publically supported demonstrators, was sentenced to death in October 2014 and
executed in January 2016.
58.
The source recalls that both Messrs. Al Hawaj and Aal Adam were tried before the
Specialized Criminal Court, which is composed of Sunni judges and prosecutors and which
has ties to the Ministry of the Interior, a Sunni institution. Of the 96 death sentences handed
down by the Court between 2013 and 2016, 38 were to members of the Shiite community.
The trials described in the present case allegedly follow the pattern of 36 other Shiite
protesters who have been sentenced to death since 2013.
59.
Finally, Mr. Al Hawaj’s sentence was based on Council of Senior Scholars decision
No. 148 and is, therefore, a ruling issued allegedly by a body that has repeatedly and
publically displayed anti-Shia sentiments that have met the threshold for hate speech. Mr.
Aal Adam was sentenced to death on the basis of the Sharia principle of ta’zir, which
allows judges to decide on both the definition and the punishment of crimes. This principle
is not codified and is applied by religiously trained judges whose work is based on the
rulings of bodies such as the Council of Senior Scholars. The source argues that anti-Shia
bias was intrinsic to the judges’ legal reasoning.
Response from the Government
60.
On 2 August 2018, the Working Group transmitted the allegations made by the
source to the Government. The Working Group requested the Government to provide, by 1
October 2018, detailed information about the situation of Messrs. Al Hawaj and Aal Adam
and any comments on the source’s allegations. The Working Group called upon the
Government to ensure Messrs. Al Hawaj and Aal Adam’s physical and mental integrity.
61.
According to the Government’s response, received on 28 September 2018, an arrest
warrant for Mr. Al Hawaj had been issued in accordance with article 35 of the Code of
Criminal Procedure and the security forces arrested him in accordance with article 26 of
that same law.
62.
The Government denies the source’s claim that Mr. Al Hawaj was subjected to
enforced disappearance for five months, during which time he was held in solitary
confinement, subjected to torture and forced to confess. Since he is being held in the prison
of the General Directorate of Investigations of the Eastern Province, a known location, it
cannot be said that he was subjected to enforced disappearance. All detention centres are
9 Human Rights Watch, “Saudi Arabia: allegations of abuse, death in custody”, 14 March 2018.
10 Ibid., “Saudi Arabia: 14 protesters facing execution after unfair trials”, 6 June 2017.
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9
subject to inspections pursuant to article 5 of the law on prisons and detention. Article 2 of
the Code of Criminal Procedure forbids the arrest, search, detention or imprisonment of any
person save in the cases provided for by law, and article 37 of the Code provides that
detention may be carried out only in places designated by law. Detention centres are subject
to oversight and inspection by the Bureau of Investigation and Public Prosecution, which
also has the authority to hear and act upon complaints from detainees. With regard to the
claim of solitary confinement, investigators have the power to prevent outside contact for a
specific time period in the interest of the investigation. Mr. Al Hawaj is allowed contact
with and visits from his family, who know where he is.
63.
The Government also denies the allegation of torture against Mr. Al Hawaj. All
forms of torture and other cruel, inhuman or degrading treatment are criminal offences
under articles 2 and 36 (1) of the Code of Criminal Procedure. Article 102 prohibits coerced
interrogations and statements. The Bureau of Investigation and Public Prosecution
supervises the conduct of law enforcement officers pursuant to article 25 of the Code of
Criminal Procedure. The Human Rights Commission is empowered to visit detention
centres at any time, without permission from the authorities, to receive and verify
complaints and to take the corresponding legal measures.
64.
In response to the allegation of coerced confession, the Government claims that Mr.
Al Hawaj acknowledged his confession in court. The Government states that the
Specialized Criminal Court was established to improve the provision of justice. It adds that,
in line with the same procedures used for all criminal courts, judges are appointed by royal
order pursuant to a decision of the Supreme Judicial Council; in accordance with article 47
of the judiciary code, the judges have obtained the relevant qualifications and met the
necessary requirements.
65.
All citizens and residents enjoy their rights and exercise their freedoms. The law
guarantees freedom of opinion and expression provided that it does not have an adverse
impact on public order, society, individuals or stability. This restriction is consistent with
the relevant international standards, in particular article 29 (2) of the Universal Declaration
of Human Rights. No person may be detained except where provided for by the law,
pursuant to article 36 of the Basic Law, article 38 of which enshrines the principle of
personal criminal liability and prohibits retroactive prosecution. The laws guarantee the
right of the accused to a fair and public trial before an independent judiciary and provide
numerous statutory assurances and rights, based on the provisions of Islamic Sharia, which
require rulers to judge their people fairly.
66.
Regarding the fact that Mr. Al Hawaj was 16 years old at the time of his alleged
offences, the Government states that he held full criminal responsibility at the time because
he had reached the legal majority according to the domestic requirements, in conformity
with the obligations of Saudi Arabia under article 1 of the Convention on the Rights of the
Child.
67.
Mr. Al Hawaj had multiple defence lawyers, who visited him, were granted access
to the case file and attended his hearings. The judge does not rely solely on confessions as
evidence, but also on the proofs obtained, including the records of the arrest and
investigations, witness statements and the discussions held during legal proceedings.
68.
The Government also denies any discrimination against the Shiite minority. All
citizens are Muslims and all citizens enjoy equal rights regardless of their sects.
Discrimination is a punishable offence.
69.
The Government largely repeats the same points in relation to the case of Mr. Aal
Adam. It claims that he does not qualify as a person with disabilities for the purpose of
article 1 of the Convention on the Rights of Persons with Disabilities because, based on the
examination by a delegate from the Human Rights Commission, his loss of hearing is not a
long-term impairment which in interaction with various barriers may hinder his full and
effective participation in society on an equal basis with others. According to the
Government, Mr. Aal Adam was to taken to medical clinics.
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10
Further comments from the source
70.
The response from the Government was transmitted to the source on 1 October 2018
for further comments. In its response of 15 October 2018, the source points out that the
Government has failed to produce evidence, such as the arrest warrants or any medical
record, in support of their claims. The source also challenges and rebuts the Government’s
claims with regard to the elements relating to categories I, II, III and V.
Execution of death sentence
71.
It has come to the Working Group’s attention that Messrs. Al Hawaj and Aal Adam
were executed on 23 April 2019 as part of the mass execution of 37 individuals carried out
that day.11
Discussion
72.
The Working Group expresses its dismay and outrage at the carrying out of Messrs.
Al Hawaj and Aal Adam’s death sentence as part of the mass execution of 37 persons on 23
April 2019. The Working Group had specifically called upon the Government to ensure
their physical and mental integrity on 2 August 2018. The Human Rights Council, in its
resolution 33/30, which Saudi Arabia had voted in favour of, had requested the States
concerned to take account of the views of the Working Group and, where necessary, to take
appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty. The
Working Group observes that while a situation of arbitrary detention can be remedied by
releasing and according appropriate reparations to the detainee, bringing someone back
from death is not possible. It is difficult to see how the executions, regarding cases that
were still pending before the Working Group, square with the international obligations of
Saudi Arabia, as a State Member of the United Nations, to take action to achieve universal
respect for and observance of human rights and fundamental freedoms for all, without
distinction as to race, sex, language or religion, in accordance with articles 55 and 56 of the
Charter of the United Nations. The Working Group refers the present case to the Special
Rapporteur on extrajudicial, summary or arbitrary executions.
73.
The Working Group has in its jurisprudence established the ways in which it deals
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 Government that lawful procedures have been followed are not sufficient
to rebut the source’s allegations (A/HRC/19/57, para. 68).12
74.
The Working Group wishes to reaffirm that the Government has the obligation to
respect, protect and fulfil the right to liberty and that any national law allowing deprivation
of liberty should be implemented in conformity with the relevant international standards set
forth in the Universal Declaration of Human Rights and other applicable instruments.13
Even if the detention is in conformity with national legislation, the Working Group is
11 Office of the United Nations High Commissioner for Human Rights, “Bachelet strongly condemns
mass executions in Saudi Arabia”, 24 April 2019.
12 See, for example, opinions No. 11/2018, para. 41; No. 19/2018, para. 25; No. 35/2018, para. 24; No.
36/2018, para. 37; No. 37/2018, para. 27; No. 40/2018, para. 42; No. 43/2018, para. 71; No. 44/2018,
para. 78; No. 45/2018, para. 39; No. 46/2018, para. 45; No. 52/2018, para. 68; No. 67/2018, para. 69;
No. 70/2018, para. 31; No. 75/2018, para. 57; No. 78/2018, para. 67; No. 79/2018, para. 68; and No.
90/2018, para. 29.
13 See General Assembly resolution 72/180, fifth preambular paragraph; Commission on Human Rights
resolutions 1991/42, para. 2, and 1997/50, para. 15; and Human Rights Council resolutions 6/4, para.
1 (a), and 10/9, para. 4 (b). See also Working Group opinions No. 76/2017, para. 62; No. 83/2017,
paras. 51 and 70; No. 88/2017, para. 32; No. 94/2017, para. 59; No. 38/2018, para. 60; No. 68/2018,
para. 37; No. 82/2018, para. 25; and No. 87/2018, para. 51.
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11
mandated to assess the judicial proceedings and the law itself to determine whether such
detention is also consistent with international law.14
Applicability of the Convention on the Rights of the Child with respect to Mr. Al Hawaj
75.
In the discharge of its mandate, the Working Group refers to the relevant
international standards, including the Convention on the Rights of the Child, the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty and the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing
Rules), in accordance with its methods of work (A/HRC/36/38, para. 7).
76.
The Working Group recalls the reference made in the preamble to the Convention on
the Rights of the Child to the 1959 Declaration of the Rights of the Child, in which it is
stated that the child, by reason of his physical and mental immaturity, needs special
safeguards and care, including appropriate legal protection. Such special safeguards and
care are particularly needed in cases involving the deprivation of life, liberty and security of
the child.
77.
The Committee on the Rights of the Child has repeatedly urged States parties to the
Convention to review existing legislation to ensure that all children up to 18 years of age
receive the protection they need, as provided for in the Convention (e.g.,
CRC/C/ALB/CO/2-4, para. 26) and observed that a national constitutional provision
defining “child” as anyone under the age of 16 is not compatible with article 1 of the
Convention (e.g., CRC/C/NAM/CO/2-3, para. 28).
78.
In paragraphs 31 and 32 of its general comment No. 10 (2007) on children’s rights
in juvenile justice, the Committee on the Rights of the Child expressed its understanding
that article 40 (3) of the Convention obliges States parties to set a minimum age of criminal
responsibility, adding that it considered a minimum age of criminal responsibility below 12
years of age not to be internationally acceptable.
79.
The Committee specifically expressed its concern to the Government that, even
though the age of majority is 18, a judge has the discretionary power to decide that a child
has reached majority at an earlier age and recommended it to take the necessary legislative
and other measures to unequivocally set the age of majority at 18 with no exception for
specific cases, including within the juvenile justice system (CRC/C/SAU/CO/2, paras. 25–
26).15
80.
The Working Group notes that the Government has put forward no legitimate aim or
justification for such judicial discretion in the determination of attainment of majority by a
child under 18 years of age. The Government therefore cannot opt out from its international
obligations under the Convention in the matter relating to Mr. Al Hawaj’s detention.
Applicability of the Convention on the Rights of Persons with Disabilities to Mr. Aal
Adam’s deprivation of liberty
81.
In the discharge of its mandate, the Working Group also refers to the Convention on
the Rights of Persons with Disabilities, in accordance with paragraph 7 of its methods of
work.
82.
Article 1 of the Convention describes persons with disabilities as including those
who have long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective participation in society
on an equal basis with others.
83.
The Working Group notes that the Committee on the Rights of Persons with
Disabilities has concluded that the national legislation of Saudi Arabia is based on a charity
14 See, for example, opinions No. 1/1998, para. 13; No. 5/1999, para. 15; No. 1/2003, para. 17; No.
33/2015, para. 80; No. 94/2017, paras. 47–48; No. 38/2018, para. 60; No. 68/2018, para. 37; No.
82/2018, para. 25; and No. 87/2018, para. 51.
15 On 30 September 2016, the Committee reiterated its serious concern that the Government does not
intend to change the fact that judges have discretion to determine the age of majority
(CRC/C/SAU/CO/3-4, paras. 13–14).
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12
model of disability that runs counter to the Convention and the Committee’s
recommendation that the Government initiate a full transition to a human rights model of
disability in laws and policies, with a view to harmonizing them with the general principles
and provisions in the Convention (CRPD/C/SAU/CO/1, paras. 5 (a) and 6 (a)).16
84.
The Government has provided no justification, no medical evidence, nor any other
type of material to substantiate its argument that Mr. Aal Adam’s hearing impairment does
not constitute “disability” for the purpose of the Convention. A mere assertion cannot meet
the burden of proof.
Category I
85.
The source alleges that Messrs. Al Hawaj and Aal Adam were not presented with an
arrest warrant or informed of the reasons for their arrest, and that they were not promptly
informed of any charges against them. The Government has not refuted this allegation with
credible substantiations.
86.
The Working Group notes that Messrs. Al Hawaj and Aal Adam were arrested
without a warrant and without being informed at that time of the reasons for their arrest, in
violation of articles 3 and 9 of the Universal Declaration of Human Rights and of principles
2, 4 and 10 of the Body of Principles. In Mr. Al Hawaj’s case, this also violates article 37 (b)
of the Convention on the Rights of the Child and, in Mr. Aal Adam’s case, article 14 (1) (a)
and (b) of the Convention on the Rights of Persons with Disabilities.17 The Working Group
finds no valid grounds to justify an exception to this principle in the present case.
87.
The Working Group finds that the authorities should have informed Messrs. Al
Hawaj and Aal Adam of the reasons for their arrest at the time of arrest and of the charges
against them promptly. It is evident that the two men were not promptly informed of the
charges against them, in violation of article 9 of the Universal Declaration of Human Rights
and principle 10 of the Body of Principles, which in Mr. Al Hawaj’s case constitutes a
violation of article 40 (2) (b) (ii) of the Convention on the Rights of the Child.18 In fact, as
Mr. Al Hawaj was not informed of the charges against him until 31 March 2016 and Mr.
Aal Adam not until September 2015, the former’s first 26 months of detention and the
latter’s first 41 months of detention were without any legal basis.
88.
The source further maintains, and the Government does not demonstrate otherwise,
that Messrs. Al Hawaj and Aal Adam were held incommunicado for five and three months
respectively. Such lengthy and severe deprivation of liberty lacks any legal basis and is
arbitrary, as it places the person outside the protection of the law, in violation of article 6 of
the Universal Declaration of Human Rights and, in Mr. Aal Adam’s case, article 12 (1) of
the Convention on the Rights of Persons with Disabilities.19
89.
The Working Group notes that neither Mr. Al Hawaj nor Mr. Aal Adam were
brought promptly before a judge and that neither was afforded the right to initiate
proceedings before a court so that it may decide without delay on the lawfulness of the
detention, in violation of articles 3, 8 and 9 of the Universal Declaration of Human Rights
and principles 11, 32 and 37 of the Body of Principles.20 While international standards
16 The Working Group acknowledges that Saudi Arabia is not alone in the sense that “most states parties
continue to face challenges in interpreting and implementing the human rights model of disability
conceptualization enshrined in article 1 (2)”. Emily Kakoullis and Yoshikazu Ikehara, “Article 1:
purpose”, in The UN Convention on the Rights of Persons with Disabilities: A Commentary, Ilias
Bantekas, Michael Ashley Stein and Dimitris Anastasiou, eds. (Oxford, Oxford University Press,
2018).
17 See opinions No. 3/2018, para. 43; No. 10/2018, para. 46; No. 26/2018, para. 54; No. 30/2018, para.
39; No. 38/2018, para. 63; No. 47/2018, para. 56; No. 51/2018, para. 80; No. 63/2018, para. 27; No.
68/2018, para. 39; and No. 82/2018, para. 29. See also article 14 (1) of the Arab Charter on Human
Rights.
18 See also article 14 (3) of the Arab Charter on Human Rights.
19 See also the Declaration on the Protection of All Persons from Enforced Disappearance, Working
Group opinion No. 82/2018, para. 28, and article 22 of the Arab Charter on Human Rights.
20 See also articles 12, 14 (1), (5) and (6), and 23 of the Arab Charter on Human Rights.
A/HRC/WGAD/2019/26
13
prescribe that the arrested person is to be brought before a judge within 48 hours,21 a stricter
standard of 24 hours is applicable for Mr. Al Hawaj under the Convention on the Rights of
the Child.22 In the Working Group’s view, a similar need for a heightened level of
safeguards and care for persons with disability should justify a 24-hour rule for Mr. Aal
Adam as well.
90.
In addition, the Working Group recalls that, according to 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 right to challenge the lawfulness of
detention before a court is a self-standing human right, the absence of which constitutes a
human rights violation, and that judicial remedy is essential to preserve legality in a
democratic society (A/HRC/30/37, paras. 2–3).23
91.
In addition, the Working Group cannot fail to observe that the death sentence
imposed on Mr. Al Hawaj for alleged offences committed when he was under 18 years of
age is in clear contravention of article 37 (a) of the Convention on the Rights of the Child
and is in any case null and void for having a deficient legal basis.
92.
The Working Group therefore considers that Messrs. Al Hawaj and Aal Adam’s
arrests, detentions and death sentences lack a legal basis and are thus arbitrary under
category I.
Category II
93.
The source asserts that Messrs. Al Hawaj and Aal Adam were arbitrarily detained
for exercising their fundamental human rights, while the Government claims that they were
arrested, tried and sentenced to death for their alleged terrorist activities.
94.
Article 29 (2) of the Universal Declaration of Human Rights provides that the only
legitimate limitations to the exercise of one’s rights and freedoms must be for the purposes
of securing due recognition and respect for the rights and freedoms of others and meeting
the just requirements of morality, public order and the general welfare in a democratic
society. In this connection, the right to freedom of expression includes the expression of
views and opinions that offend, shock or disturb (A/HRC/17/27, para. 37).24 Protecting
national security or countering terrorism cannot be used to justify restrictions on the right to
expression unless: (a) the expression is intended to incite imminent violence; (b) the
expression is likely to incite such violence; and (c) there is a direct and immediate
connection between the expression and the likelihood or occurrence of such violence (ibid.,
para. 36).25
95.
Even by the Government’s own admission, Messrs. Al Hawaj and Aal Adam have
been charged, convicted and sentenced to death, inter alia, for organizing protests and
sharing information about them. While the perpetrators of individual acts of violence that
occur during the protests may be held legally liable, the organizers, promoters and
participants of protests cannot be held personally responsible for acts of violence by
others.26
96.
In the Working Group’s view, vaguely defined phrases such as “disunity, sedition
and separation”, which appears in article 12 of the Basic Law, have a chilling effect on the
exercise of rights. The undefined ta’zir crimes, with discretionary punishments, a fortiori
have a chilling effect on the exercise of rights.
21 See opinions No. 57/2016, paras. 110–111; No. 2/2018, para. 49; No. 83/2018, para. 47; No. 11/2019,
para. 63; and No. 30/2019, para. 30.
22 See Committee on the Rights of the Child general comment No. 10, para. 83.
23 See also opinion No. 39/2018, para. 35.
24 In addition, the Human Rights Council, in paragraph 5 (p) (i) of its resolution 12/16, called upon
States to refrain from imposing restrictions that are not consistent with article 19 (3) of the
International Covenant on Civil and Political Rights, including on discussion of government policies
and political debate.
25 See A/HRC/17/27, para. 37, citing the Johannesburg Principles on National Security, Freedom of
Expression and Access to Information, Principle 6, as endorsed in E/CN.4/1996/39. See also Supreme
Court of the United States of America, Brandenburg v. Ohio, 395 US 444, 8 June 1969.
26 See opinion no. 22/2017, para. 74.
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14
97.
The Working Group is therefore of the opinion that Messrs. Al Hawaj and Aal
Adam’s deprivation of liberty is arbitrary, falling within category II, as it violates articles
18, 19 and 20 (1) of the Universal Declaration of Human Rights, as well as articles 13 (1),
14 (1) and 15 (1) of the Convention on the Rights of the Child in Mr. Al Hawaj’s case and
article 21 of the Convention on the Rights of Persons with Disabilities in Mr. Aal Adam’s
case.
Category III
98.
Given its finding that the deprivation of liberty of Messrs. Al Hawaj and Aal Adam
is arbitrary under category II, the Working Group wishes to emphasize that the trials should
never have taken place. However, as they did take place, the Working Group will consider
whether the alleged violations of the right to a fair trial and due process were grave enough
to give the deprivation of liberty an arbitrary character under category III.
99.
According to the information provided by the source, which the Government did not
refute with credible information, Messrs. Al Hawaj and Aal Adam were denied the right to
notify and communicate with their family and lawyers, contrary to principles 15−19 of the
Body of Principles. In the view of the Working Group, such procedural defects severely
compromised their due process and fair trial rights.
100.
Subsequently, the Government failed to respect Messrs. Al Hawaj and Aal Adam’s
right to legal assistance and their right to a fair and public hearing by a competent,
independent and impartial tribunal established by law, in violation of articles 3, 9, 10 and
11 (1) of the Universal Declaration of Human Rights and, in Mr. Al Hawaj’s case, of
articles 37 (d) and 40 (2) (b) (ii) and (iii) of the Convention on the Rights of the Child. The
denial of legal assistance at the critical stages of criminal proceedings exposed them to
torture and other coercive means used to extract confessions. The lawyers had no access to
case files and were forced to resign because of personal threats against them. The Working
Group therefore finds serious violations of articles 10 and 11 (1) of the Universal
Declaration and, for Mr. Al Hawaj, article 40 (2) (b) (ii) and (iii) of the Convention on the
Rights of the Child.27 The Working Group refers this case to the Special Rapporteur on the
independence of judges and lawyers.
101.
Mr. Al Hawaj’s pretrial detention from 17 January 2014 to 31 March 2016, for 26
months, and Mr. Aal Adam’s from 10 April 2012 to September 2015, for 41 months,
without individualized judicial determination, undermines the presumption of innocence
and the right to be tried within a reasonable time or to be released pending trial, under
article 11 (1) of the Universal Declaration of Human Rights and principles 36 (1) and 38 of
the Body of Principles, as well as, in Mr. Al Hawaj’s case, articles 37 (b) and 40 (2) (b) (i)
of the Convention on the Rights of the Child and paragraph 17 of the United Nations Rules
for the Protection of Juveniles Deprived of their Liberty.28
102.
In the Working Group’s view, the Specialized Criminal Court, which tried,
convicted and sentenced to death Messrs. Al Hawaj and Aal Adam, is not composed of
independent judges, but of a panel appointed by the Ministry of the Interior and cannot be
considered
independent,
as
confirmed
by
the
Committee
against
Torture
(CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 17).
103.
The Working Group cannot fail to express its gravest concern at the allegations of
torture and ill-treatment. While in detention, Mr. Al Hawaj endured extraction of toe nails,
denial of access to the bathroom, death threats against his family and solitary confinement.
Also while in detention, Mr. Aal Adam suffered electrocution of various body parts, brutal
beatings that left him completely deaf in one ear, denial of medical care, threats against
family, sleep deprivation, denial of food and solitary confinement. Such practices clearly
violate articles 5 and 25 (1) of the Universal Declaration of Human Rights and principle 6
of the Body of Principles, in addition to the relevant provisions of the Convention against
Torture and, for Mr. Al Hawaj, articles 24 (1) and 37 (a) and (c) of the Convention on the
Rights of the Child.29 The treatment described reveals a prima facie breach of the absolute
27 See also articles 12, 13 (1) and 16 (2) and (3) of the Arab Charter on Human Rights.
28 See also articles 14 (6) and 16 of the Arab Charter on Human Rights.
29 See also articles 8 (1), 14 (4), 20 (1), 34 (3) and 39 (1) of the Arab Charter on Human Rights.
A/HRC/WGAD/2019/26
15
prohibition of torture, which is a peremptory norm of international law. 30 The Working
Group therefore refers the present case to the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment.
104.
In the Working Group’s view, not only is torture a grave violation of human rights,
but it seriously undermines the ability of persons to defend themselves and hinders the
exercise of their right to a fair trial, especially in light of the right not to be compelled to
testify against oneself or to confess guilt. The use of a confession extracted through ill-
treatment also constitutes a violation of article 15 of the Convention against Torture and
principle 21 of the Body of Principles.31
105.
The Working Group also considers that vague provisions such as article 12 of the
Basic Law or uncodified principles of ta’zir could be used to deprive individuals of their
liberty without a legal basis and violate the due process of law, undergirded by the principle
of legality, as stipulated in article 11 (2) of the Universal Declaration of Human Rights or
article 40 (2) (a) of the Convention on the Rights of the Child. The principle of legality
requires that laws be formulated with sufficient precision so that the individual can access
and understand the law, and regulate his or her conduct accordingly.32
106.
Given the above, the Working Group concludes that the violations of the right to a
fair trial and due process are of such gravity as to give Messrs. Al Hawaj and Aal Adam’s
deprivation of liberty an arbitrary character under category III.
Category V
107.
The Working Group will now examine whether Messrs. Al Hawaj and Aal Adam’s
detention constitutes illegal discrimination under international law under category V.
108.
The Working Group notes historic discrimination against the Shiite ethno-religious
minority. This has included the executions of Shiites following protests in 2011.
109.
The Working Group also notes that in 2018 the Committee on the Elimination of
Racial Discrimination expressed concern that ethno-religious minorities faced obstacles in
freely practicing their right to freedom of religion or belief and that certain ethno-religious
minorities faced discrimination in education, employment and the legal system
(CERD/C/SAU/CO/4-9, para. 23). The Committee recommended that Saudi Arabia take all
measures necessary to ensure the rights of ethno-religious minorities (ibid., para. 24).
110.
In view of the violations identified above, which provide a background to the
present case, the Working Group considers that Messrs. Al Hawaj and Aal Adam’s
deprivation of liberty constitutes discrimination based on their ethno-religious origin and
political opinion, a violation of articles 2 and 7 of the Universal Declaration of Human
Rights, as well as of article 2 of the Convention on the Rights of the Child for Mr. Al
Hawaj and article 3 (b) of the Convention on the Rights of Persons with Disabilities for Mr.
Aal Adam. Their deprivation of liberty therefore falls under category V.33
111.
In its 28-year history, the Working Group has found Saudi Arabia in violation of its
international human rights obligations in about 60 cases.34 The Working Group is
30 Opinion No. 39/2018, para. 42. As the Committee against Torture has concluded, States should
ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture
occurred and regardless of the nationality or the perpetrator or victim, including by restricting the
application of State immunity laws (CAT/C/CAN/CO/6, para. 15, and CAT/C/CAN/CO/7, paras. 40–
41).
31 See also opinions No. 48/2016, para. 52; No. 3/2017, para. 33; No. 6/2017, para. 43; No. 29/2017,
para. 64; and No. 39/2018, para. 42.
32 See opinion no. 62/2018, para. 57.
33 See also article 3 (1) of the Arab Charter on Human Rights, article 2 of the African Charter on Human
and Peoples’ Rights and article 3 of the African Charter on the Rights and Welfare of the Child.
34 See decisions No. 40/1992, No. 60/1993, No. 19/1995 and No. 48/1995, and 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.
A/HRC/WGAD/2019/26
16
concerned that this indicates a systemic problem with arbitrary detention. The Working
Group recalls that, under certain circumstances, widespread or systematic imprisonment or
other severe deprivation of liberty in violation of the rules of international law may
constitute crimes against humanity (A/HRC/13/42, para. 30).35 The Working Group has
alluded to this possibility in its past cases concerning Saudi Arabia.36
112.
Given its finding that Messrs. Al Hawaj and Aal Adam were arbitrarily deprived of
their liberty without legal basis as a result of exercising their freedom of expression and in
violation of their right to a fair trial and non-discrimination, the Working Group considers
that their death sentences are indefensible and the execution thereof inexcusable. Therefore,
the execution of Messrs. Al Hawaj and Aal Adam amounts to arbitrary deprivation of life in
violation of article 3 of the Universal Declaration of Human Rights.37
113.
The Working Group reminds the Government that the General Assembly, in its
resolution 73/175, called upon all States to establish a moratorium on executions with a
view to abolishing the death penalty. The Working Group refers the present case to the
Special Rapporteur on extrajudicial, summary or arbitrary executions.
Disposition
114.
In the light of the foregoing, the Working Group renders the following opinion:
(a)
The deprivation of liberty of Abdelkarim Mohamed Al Hawaj, being
in contravention of articles 3, 5–11, 18–19, 20 (1) and 25 (1) of the Universal
Declaration of Human Rights and articles 2, 13 (1), 14 (1), 15 (1), 24 (1), 37 and 40
(2) (a) and (b) (i)–(iv) of the Convention on the Rights of the Child, is arbitrary and
falls within categories I, II, III and V;
(b)
The deprivation of life and liberty of Mounir Abdullah Ahmad Aal
Adam, being in contravention of articles 3, 5–11, 18–19, 20 (1) and 25 (1) of the
Universal Declaration of Human Rights and articles 3 (b), 10, 12 (1), 14 (1) and 21
of the Convention on the Rights of Persons with Disabilities, is arbitrary and falls
within categories I, II, III and V.
115.
The Working Group requests the Government of Saudi Arabia to take the steps
necessary to remedy the situation of Messrs. Al Hawaj and Aal Adam without delay and
bring it into conformity with the relevant international norms, including those set out in the
Universal Declaration of Human Rights.
116.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Messrs. Al Hawaj and Aal Adam’s
families an enforceable right to compensation and other reparations, in accordance with
international law.
117.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Messrs.
Al Hawaj and Aal Adam and to take appropriate measures against those responsible for the
violation of their rights.
118.
The Working Group requests the Government to revise article 12 of the Basic Law
to meet the requirement of the principle of legality and to codify ta’zir principles and
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, No.
10/2018 and No. 68/2018.
35 See opinions No. 1/2011, para. 21; No. 37/2011, para. 15; No. 38/2011, para. 16; No. 39/2011, para.
17; No. 4/2012, para. 26; No. 38/2012, para. 33; No. 47/2012, paras. 19 and 22; No. 50/2012, para. 27;
No. 60/2012, para. 21; No. 9/2013, para. 40; No. 34/2013, paras. 31, 33 and 35; No. 35/2013, paras.
33, 35 and 37; No. 36/2013, paras. 32, 34 and 36; No. 48/2013, para. 14; No. 22/2014, para. 25; No.
27/2014, para. 32; No. 34/2014, para. 34; No. 35/2014, para. 19; No. 36/2014, para. 21; No. 44/2016,
para. 37; No. 60/2016, para. 27; 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.
36 See opinions No. 93/2017, para. 61; No. 10/2018, para. 85; and No. 68/2018, para. 60.
37 See also article 5 of the Arab Charter on Human Rights.
A/HRC/WGAD/2019/26
17
punishments, which are currently left at the discretion of the judges, in conformity with the
findings in the present opinion and with its obligations under international law.
119.
The Working Group requests the Government to revise its laws, in particular those
concerning the imposition of the death penalty, the discretion granted to judges to
determine the age of majority and the operation of the General Directorate of Investigations
and the Specialized Criminal Court, to meet the requirement of due process and fair trial in
conformity with the findings in the present opinion and with its obligations under
international law.
120.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on extrajudicial, summary or arbitrary
executions, 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.
121.
The Working Group recommends that the Government ratify the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights, as well as their optional protocols.
122.
The Working Group requests the Government to publish and disseminate the present
opinion through all available means and as widely as possible.
Follow-up procedure
123.
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 compensation or other reparations have been made to Messrs. Al
Hawaj and Aal Adam’s families;
(b)
Whether an investigation has been conducted into the violation of Messrs. Al
Hawaj and Aal Adam’s rights and, if so, the outcome of the investigation;
(c)
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;
(d)
Whether any other action has been taken to implement the present opinion.
124.
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.
125.
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.
126.
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.38
[Adopted on 2 May 2019]
38 See Human Rights Council resolution 33/30, paras. 3 and 7.