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A/HRC/WGAD/2019/26

Opinion no. 26/2019 concerning Abdelkarim Mohamed Al Hawaj and Mounir Abdullah Ahmad Aal Adam (Saudi Arabia)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2019-05-03 · en UN

Opinion; Subjects: SAUDI ARABIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.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

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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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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.

A/HRC/WGAD/2019/26

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.

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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.