A/HRC/WGAD/2019/71

GE.20-02300(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-sixth session, 18–22 November 2019

Opinion No. 71/2019 concerning Issa al-Nukheifi, Abdulaziz Youssef

Mohamed al-Shubaili and Issa Hamid al-Hamid (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 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 9 August 2019 the

Working Group transmitted to the Government of Saudi Arabia a communication

concerning Issa al-Nukheifi, Abdulaziz Youssef Mohamed al-Shubaili, and Issa Hamid al-

Hamid. The Government replied to the communication on 18 September 2019. 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/2019/71

General Assembly

Distr.: General

14 February 2020

Original: English

A/HRC/WGAD/2019/71

2

Submissions

Communication from the source

4.

Issa al-Nukheifi is a citizen of Saudi Arabia and a political activist. He was born in

1971. He usually resides at al-Wdyea Street, Mecca, Saudi Arabia.

5.

Abdulaziz Youssef Mohamed al-Shubaili is a citizen of Saudi Arabia, a human

rights defender and a co-founder of the Saudi Civil and Political Rights Association. He

was born in 1985 and usually resides in Qasim, Saudi Arabia.

6.

Issa Hamid al-Hamid is a Saudi citizen, a human rights defender and a co-founder of

the Saudi Civil and Political Rights Association. He was born in 1967. He usually resides in

Qasim, Saudi Arabia.

(a)

Arrest, detention and trial

(i)

Mr. Al-Nukheifi

7.

The source reports that Mr. Al-Nukheifi was arrested for the first time on 15

September 2012, three weeks after appearing on television and accusing the local

authorities in Jazan of corruption and of committing human rights violations. On 29 April

2013, the Specialized Criminal Court sentenced him to three years in prison and a four-year

travel ban on the basis of article 6 of the Anti-Cyber Crime Law. Mr. Al-Nukheifi was

released on 6 April 2016 after completing his sentence.

8.

The source informs the Working Group that following his release, Mr. Al-Nukheifi

was consulted as part of the preparations for the visit of the Special Rapporteur on extreme

poverty and human rights to Saudi Arabia scheduled for January 2017. On 17 December

2016, Mr. Al-Nukheifi received a call from the Criminal Investigation Department,

summoning him to Al-Nouzha police station in Mecca for questioning. Upon reporting to

the police station the following day, Mr. Al-Nukheifi was immediately arrested. He was

questioned by the Bureau of Investigation and Prosecution about tweets he had published

calling for the release of members of the Saudi Civil and Political Rights Association, and

about his contact with international human rights organizations. In addition, Mr. Al-

Nukheifi was interrogated about his new Twitter account, which called for democracy in

Saudi Arabia and the establishment of a directly elected “Saudi Popular Parliament”.

9.

The source submits that on 30 December 2016, Mr. Al-Nukheifi was transferred to

Mecca General Prison, where he was forced to sleep on the floor without a blanket and

repeatedly threatened with torture.

10.

According to the source, Mr. Al-Nukheifi’s trial before the Specialized Criminal

Court began on 21 August 2017. This was the first time that he was brought before a judge

and officially informed of the charges against him. Mr. Al-Nukheifi was charged with

seeking to destabilize the social fabric and national cohesion, on the basis of paragraph 8 of

Royal Decree No. 16820; communicating with and receiving money from foreign groups

considered to be enemies of the State, on the basis of paragraphs 5 and 6 of Royal Decree

No. 16820; and adopting a Takfiri approach by accusing the Guardians of Saudi Arabia of

being infidels and using a personal cell phone and the Internet to store and transfer

information that was allegedly harmful to the public order, on the basis of article 6 (1) of

the Anti-Cyber Crime Law. He was also charged under article 1 (3) of the 2017 counter-

terrorism law and under Royal Decree A/44. On 28 February 2018, the Specialized

Criminal Court sentenced Mr. Al-Nukheifi to six years of imprisonment, and imposed a six-

year travel and social media ban on him upon his release. On 7 April 2018, in a decision

that cannot be further appealed, the court of appeal confirmed the sentence.

11.

In July 2019, it was reported that Mr. Al-Nukheifi was being subjected to ongoing

ill-treatment, including being stripped of his clothes and having his hands and feet shackled.

(ii)

Mr. Al-Shubaili and Mr. Al-Hamid

12.

The source reports that Mr. Al-Shubaili and Mr. Al-Hamid were the last remaining

free members of the Saudi Civil and Political Rights Association, which had filed local

lawsuits against the Ministry of the Interior and had reported human rights violations to the

Human Rights Council and special procedures. The Association was banned by a court

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decision on 9 April 2013, in which the court ordered the organization’s dissolution. The

decision was rendered after an arbitrary process that could not be challenged.

Mr. Al-Shubaili

13.

The source submits that as a result of his continued work documenting human rights

violations with the Saudi Civil and Political Rights Association, the Saudi authorities

summoned Mr. Al-Shubaili to the Bureau of Investigation and Prosecution in Qasim on 18

November 2013 for questioning. He was interrogated on at least four occasions; the last

interrogation took place on 17 December 2013.

14.

Reportedly, Mr. Al-Shubaili was officially informed of the charges against him for

the first time in July 2014. They included: incitement to demonstrate; harming the

credibility of religious authorities; contempt of a State constituent body; insulting the Saudi

authorities by describing them as a police State that violates human rights; disturbing public

opinion by accusing security authorities and high officials of repression, torture, summary

execution, enforced disappearance and human rights violations; participating in an unlawful

association; refusing to comply with the court decision from 9 April 2013 concerning the

dissolution of the Saudi Civil and Political Rights Association; and preparing, storing and

sending information that might prejudice public order, on the basis of article 6 (1) of the

Anti-Cyber Crime Law. In March 2015, he was informed of the additional charge of

communicating with foreign organizations, which referred to his cooperation with the

United Nations human rights mechanisms and international non-governmental human rights

organizations.

15.

According to the source, Mr. Al-Shubaili’s secret trial before the Specialized

Criminal Court started on 9 April 2015. On 29 May 2016, Mr. Al-Shubaili was sentenced to

eight years in prison on the basis of article 6 of the Anti-Cyber Crime Law, and an eight-

year social media ban and an eight-year travel ban were imposed on him on the basis of

article 6 of the Law on travel documents.1 He was coerced into signing a pledge promising

not to “repeat” the incriminating acts. On 24 July 2016, Mr. Al-Shubaili lodged an appeal

against his sentence with the Appeals chamber of the Specialized Criminal Court. In a

decision that cannot be further appealed, Mr. Al-Shubaili’s sentence was upheld on 15 May

2017.

16.

The source informs the Working Group that despite the pronouncement of the prison

sentence, Mr. Al-Shubaili was not detained immediately. In the context of a decades-long

crackdown against civil society in the country, the Saudi authorities often withhold the

implementation of court verdicts against activists and human rights defenders in order to

use the threat of imprisonment against them and thus prevent them from carrying out their

work for the longest time possible. On 17 September 2017, Mr. Al-Shubaili was arrested in

Qasim and is currently held in Onayza prison.

Mr. Al-Hamid

17.

The source reports that Mr. Al-Hamid was summoned for interrogation at the

Bureau of Investigation and Prosecution in Qasim for the first time on 21 November 2013.

He was then called for interrogation a further six times, with the last session taking place on

14 June 2014. His right to legal counsel was denied on every occasion. In addition, he was

subjected to ill-treatment, including by being insulted, threatened with an arrest warrant and

placed in a detention cell on several occasions during his interrogation.

18.

The source reports that Mr. Al-Hamid’s trial began before the Buraydah Criminal

Court in June 2014. Mr. Al-Hamid was officially informed of the charges against him for

1 Mr. Al-Shubaili was found guilty of the following acts: accusing the members of the Council of

Senior Scholars of being mere tools that ratify blogs in return for moral and financial support, as

demonstrated by their decision banning demonstrations; criticizing the Saudi judiciary by saying that

it lacks independence and criticizing the integrity and honesty of the judges of the court; accusing the

Government of Saudi Arabia of committing human rights violations and failing to prove that legally;

pitting public opinion against the guardians of the State and describing them as repressive, and

inciting protests, and signing statements urging this via the Internet; insisting on carrying on Saudi

Civil and Political Rights Association activities and insisting on defying the legal decision mandating

the dismantling of the organization, under article 6 of the Anti-Cyber Crime Law.

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the first time during his second hearing, on 3 July 2014. They included: incitement to

demonstrate; harming the credibility of religious authorities; contempt of a State constituent

body; insulting the Saudi authorities by describing them as a police State that violates

human rights; troubling public opinion by accusing security authorities and high officials of

repression, torture, summary execution, enforced disappearance and human rights

violations; participating in an unlawful association; contacting foreign organizations and

providing false information; refusing to comply with the court decision concerning the

dissolution of the Saudi Civil and Political Rights Association and persisting in the

violation by acting as president of the Association; and preparing, storing and sending

information that might prejudice public policy, on the basis of article 6 (1) of the Anti-

Cyber Crime Law. Following the second hearing, Mr. Al-Hamid’s case was transferred to

the Specialized Criminal Court in Riyadh. On 29 May 2016, Mr. Al-Hamid was sentenced

to nine years of imprisonment, followed by a nine-year travel ban upon his release. In a

decision that cannot be further appealed, on 15 May 2017, Mr. Al-Hamid’s sentence was

increased to 11 years in prison, an 11-year travel ban upon his release and a fine of 100,000

riyals (about $26,660).

19.

According to the source, Mr. Al-Hamid was arrested in Qasim on 16 September

2017 and has been imprisoned in Onayza prison ever since to serve his sentence.

(b)

Legal analysis

20.

The source submits that the detentions of Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr.

Al-Hamid are arbitrary according to categories I, II, III and V of the Working Group.

(i)

Category I

21.

The source submits that Mr. Al-Nukheifi’s detention falls under category I, as he

was arrested without a warrant and was not given any reason for his arrest. The

circumstances of his arrest did not give any cause for flagrante delicto, and he was only

informed of the charges against him during his hearing in August 2017 – more than eight

months after his arrest. As such, Mr. Al-Nukheifi’s detention was not grounded in law from

17 December 2016 to 21 August 2017, in violation of article 9 of the Universal Declaration

of Human Rights and articles 14 (1) (2) (3) (5) (6) and 16 (1) of the Arab Charter on

Human Rights.

22.

Furthermore, as highlighted by regional and international legal interpretations of the

principle of legality in relation to deprivation of liberty, the source argues that the principle

of legality entails more than the mere existence of a legal basis for a detention in order to be

grounded in law.

23.

The source submits that all three individuals were convicted on the basis of the Anti-

Cyber Crime Law, which violates the principle of legal certainty. Article 1 (8) defines

cybercrime in overly broad terms and includes any action which involves the use of

computers or computer networks in violation of the provisions of the law. Article 6 (1) is

equally vague, punishing with up to five years in prison anyone who produces, prepares,

transmits or stores material impinging on public order, religious values, public morals, and

privacy, through the information network or computers. Such provisions allow for the

criminalization of peaceful expression, enable arbitrary interpretation and make it difficult

for citizens to determine how to act in order to comply with the law.

24.

The source argues that, in addition, Mr. Al-Nukheifi was convicted on the basis of

the 2017 counter-terrorism Law. The law defines terrorist acts in very broad terms,

including any conduct committed by the offender in the implementation of a criminal

project, individually or collectively, directly or indirectly, that is intended to disturb public

order, undermine public security, destabilize the State or endanger its national unity,

obstruct the application of the Basic Law on Governance or part of its provisions, or cause

damage to any State facilities or to its natural or economic resources, or attempt to compel

one of its authorities to do or to refrain from doing any act or to harm or cause the death of

any person when the purpose, in its nature or context, is to terrorize people or force a

Government or international organization to carry out or prevent it from carrying out any

action, or the incitement or threat to commit acts resulting in the aforementioned purposes.

25.

The source further submits that, similarly, the 2017 counter-terrorism Law

criminalizes attempts to change the system of government; causing harm to the reputation

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or standing of the State; and damaging its public utilities and natural resources. The source

recalls that following his country visit to Saudi Arabia, the Special Rapporteur on the

promotion and protection of human rights and fundamental freedoms while countering

terrorism concluded that anyone challenging the authority or policies of the State could

qualify as a terrorist (A/HRC/40/52/Add.2, para. 14).

26.

In light of the above, the source recalls that the principle according to which no one

shall be deprived of his or her physical liberty except for the reasons and under the

conditions established beforehand by domestic law, should also entail that such provisions

are in line with international human rights law.2

27.

The source argues that requirement of lawfulness should not be considered as

satisfied merely by compliance with the relevant domestic law: domestic law must itself be

in conformity with relevant international standards. 3 Therefore, the assessment of the

legality of detention should not be limited to the mere existence of a law but also to the

quality of the law in order to meet the standards of lawfulness for deprivation of liberty.4

The quality of the law refers to its predictability and its potential to create situations of

arbitrary detention.

28.

In this regard, the source also underlines that the grounds on which the three

complainants were arrested ought to be considered as a law criminalizing lèse-majesté. The

source notes that the Working Group has elaborated in the past on the propriety of the lèse-

majesté law in view of the principle of legality.5

29.

The source submits that Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid were

charged on the basis of the Anti-Cyber Crime Law. In addition, Mr. Al-Nukheifi was

convicted under the counter-terrorism law. Both laws criminalize acts falling under the

rights to freedom of expression and freedom of conscience and should be read as laws on

lèse-majesté. Moreover, those laws contain unclear wording that denies foreseeability for

potential defendants and as such install a chilling effect on civil society.6

30.

In light of the above, the source submits that despite the presence of a domestic legal

basis for the arrest of Mr. Al-Shubaili and Mr. Al-Hamid, such legal basis should not be

considered as valid under international law to satisfy the exigencies of the principle of

legality. As such, the three complainants’ detentions fall under category I.

(ii)

Category II

31.

The source submits that the three individuals’ detentions are arbitrary in accordance

with category II because they derive directly from the exercise of their right to freedom of

expression. With regard to Mr. Al-Nukheifi, the source further submits that the deprivation

of his liberty stems from the exercise of his right to freedom of religion or belief. As for Mr.

Al-Shubaili and Mr. Al-Hamid, their detentions are also the result of their exercise of their

right to association.

2 Principle IV (principle of legality) of the Principles and Best Practices on the Protection of Persons

Deprived of Liberty in the Americas.

3 European Court of Human Rights, Plesó v. Hungary, Application No. 41242/08, Judgment, 2 October

2012, para. 59. See also Simons v. Belgium, Application No. 71407/10, Decision, para. 32, where the

Court noted that the general principles implied by the Convention for the Protection of Human Rights

and Fundamental Freedoms and to which jurisprudence concerning article 5 (1) of that Convention

refers are the principle of the rule of law and, connected to the latter, the principle of legal certainty,

the principle of proportionality and the principle of protection against arbitrariness, which is,

moreover, the very aim of article 5.

4 The European Court of Human Rights has stated that the law must be sufficiently accessible, precise

and foreseeable in its application. Factors relevant to this assessment of the “quality of law” – which

are referred to in some cases as “safeguards against arbitrariness” – will include the existence of clear

legal provisions for ordering detention, for extending detention and for setting time-limits for

detention; and the existence of an effective remedy by which an applicant can contest the “lawfulness”

and “length” of his or her continuing detention (J.N. v. The United Kingdom, Application No.

37289/12, Judgment, 19 May 2016, para. 77).

5 See Opinion No. 20/2017.

6 Ibid., paras. 51–52.

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32.

The source notes that Mr. Al-Nukheifi was charged with adopting a Takfiri approach

by accusing the “guardians of Saudi Arabia” of being infidels. While Mr. Al-Nukheifi did

not specifically use those terms, his criticism of the Saudi religious establishment was

founded on a religious argument that the State was using religion as a political tool in order

to curtail rights and freedoms. Mr. Al-Nukheifi was grounded in his religious interpretation

of Islam, which differed from the one adopted by the religious scholars he criticized. The

source considers that this criticism should be protected not only as a form of freedom of

expression but also as a form of expression of religious dissent in a theocracy such as Saudi

Arabia. As such, the charges against Mr. Al-Nukheifi are the direct result of his criticism of

the religious authorities in Saudi Arabia, which are conflated with the State authorities.

Therefore, this charge ought to be considered as a violation of Mr. Al-Nukheifi’s freedom

to manifest his religion or belief in teaching, practice, worship and observance, as provided

for in article 18 of the Universal Declaration of Human Rights.

33.

Reportedly, Mr. Al-Nukheifi was charged with using a personal cell phone and the

Internet to store and transfer information that was allegedly harmful to the public order.

Similarly, Mr. Al-Shubaili was convicted of, among other charges, accusing the members

of the Council of Senior Scholars of being mere tools that ratified blogs in return for moral

and financial support, as demonstrated by their decision banning demonstrations; criticizing

the Saudi judiciary by saying that it lacked independence and criticizing the integrity and

honesty of the judges of the court; and accusing the Government of Saudi Arabia of

committing human rights violations and failing to prove that legally.

34.

The source informs the Committee that Mr. Al-Hamid was charged with: insulting

the Saudi authorities by describing them as a police State that violated human rights;

“troubling” public opinion by accusing security authorities and high officials of repression,

torture, summary execution, enforced disappearance and human rights violations; and

preparing, storing and sending information that might prejudice public policy.

35.

In light of the above, the source submits that the charges against the three

individuals stem directly from the exercise of their right to freedom of expression, which is

in violation of the obligations of Saudi Arabia under article 19 of the Universal Declaration

of Human Rights and article 32 (1) of the Arab Charter on Human Rights.7

36.

In addition, the source submits that Mr. Al-Nukheifi was arrested soon after being

consulted by the team of the Special Rapporteur on extreme poverty and human rights and

was charged with communicating with and receiving money from foreign groups

considered to be enemies of the State, among other charges. Similarly, Mr. Al-Shubaili and

Mr. Al-Hamid were members of the Saudi Civil and Political Rights Association, a human

rights group that worked with international organizations to document cases of human

rights violations before the United Nations human rights mechanisms. As such, in

subjecting the individuals to reprisals as a result of their cooperation with the United

Nations, the Government of Saudi Arabia, in violation of the right, reaffirmed by the

Human Rights Council in its resolution 24/24, of everyone, individually and in association

with others, to unhindered access to and communication with international bodies, in

particular the United Nations, its representatives and mechanisms in the field of human

rights, bearing in mind that free and unhindered access to and communication with

individuals and civil society are indeed indispensable to enable the United Nations and its

mechanisms to fulfil their mandates.

37.

The source notes that Mr. Al-Shubaili and Mr. Al-Hamid were convicted of

participating in an unlawful association and of refusing to comply with the court decision

from 9 April 2013 concerning the dissolution of the Saudi Civil and Political Rights

Association. This constitutes a violation of the Saudi authorities’ obligations with regard to

the right to freedom of association as provided for in article 20 (1) of the Universal

Declaration of Human Rights and article 24 (5) and (6) of the Arab Charter on Human

Rights.

7 The source also recalls the Working Group’s opinion No. 10/2018, paras. 60 and 62.

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(iii)

Category III

38.

The source submits that the three individuals’ detention is arbitrary in accordance

with category III, due to multiple violations of their fair trial rights.

39.

The source informs the Working Group that Mr. Al-Nukheifi was not presented with

a warrant upon his arrest, nor was he given any reason for his arrest. As such, the arrest was

in violation of principle 10 of the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment.

40.

According to the source, Mr. Al-Nukheifi was brought before a judicial authority

and informed of the charges against him for the first time at the beginning of his trial in

August 2017 – more than eight months after his initial arrest. Mr. Al-Shubaili was

interrogated between November and December 2013 and informed of the charges against

him in July 2014. This is in violation of the authorities’ obligation to inform defendants of

the charges against them without undue delay, as provided for in principle 10 of the Body

of Principles and article 14 (3) of the Arab Charter on Human Rights.

41.

The source submits that the fact that Mr. Al-Nukheifi was brought before a judicial

authority eight months after his arrest means that he was also denied his right to challenge

the legality of his detention before a judicial authority. This violates principle 32 of the

Body of Principles and articles 8, 9 and 10 of the Universal Declaration of Human Rights.

Moreover, the Saudi authorities violated Mr. Al-Nukheifi’s right to have the lawfulness of

his detention reviewed at regular intervals by an independent judicial body, as enshrined in

principle 39 of the Body of Principles. The source recalls that the Working Group has

further asserted that habeas corpus is in itself a self-standing human right that can be

inferred from articles 8, 9 and 10 of the Universal Declaration of Human Rights

(A/HRC/19/57, paras. 59 and 77).

42.

According to the source, Mr. Al-Nukheifi was brought to trial on 21 August 2017,

over eight months after his arrest. Mr. Al-Shubaili was brought to trial on 9 April 2015, one

year and five months after his initial interrogation. Mr. Al-Hamid was brought to trial in

June 2014, seven months after his initial interrogation. This constitutes a violation of their

respective rights to be tried without undue delay, guaranteed under article 14 (5) of the

Arab Charter on Human Rights.

43.

The source submits that Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid were

also denied their right to be presumed innocent until proven guilty. The Saudi authorities

held Mr. Al-Nukheifi in detention for over eight months before his trial began. This, despite

the fact that there was no evidence to suggest that the deprivation of his liberty was

necessary and proportionate, or that his release would create a substantial risk of flight,

harm to others or interference with the evidence or investigation that could not be allayed

by other means. In addition, by delaying Mr. Al-Shubaili’s trial by one year and five

months and Mr. Al-Hamid’s trial by seven months, the Government of Saudi Arabia

subjected them to a high level of uncertainty and stigma attached to the accusations against

them. As a result, the authorities violated their obligations under article 14 (5) of the Arab

Charter on Human Rights, principle 39 of the Body of Principles and rule 6 of the United

Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules).

44.

The source reports that Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al Hamid were all

prosecuted before the Specialized Criminal Court, a court of exception composed of a panel

of judges appointed by the Ministry of the Interior and lacking in independence. The source

recalls that the Committee against Torture has expressed concern that the Specialized

Criminal Court is insufficiently independent of the Ministry of the Interior

(CAT/C/SAU/CO/2 and Corr.1, para. 17). As such, the source argues that the executive

branch of government is both judge and party in a court that cannot be impartial or respect

due process rules, in contravention of article 10 of the Universal Declaration of Human

Rights.

45.

The source informs the Working Group that Mr. Al-Hamid was denied access to

legal counsel during his interrogation. This contravenes principle 18 (3) of the Body of

Principles and rule 61 (1) of the United Nations Standard Minimum Rules for the

Treatment of Prisoners (the Nelson Mandela Rules), both of which stipulate that defendants

must have access to legal counsel “without delay”.

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46.

According to the source, Mr. Al-Shubaili’s trial was held in camera. While the right

to be tried publicly may be limited, the source recalls that this can only happen in

exceptional cases that may be warranted by the interests of justice in a society that respects

human freedoms and rights. The source argues that restricting access to the trial of a

peaceful human rights defender is in no way warranted by the interests of justice. As such,

in doing so, the authorities violated their obligations under article 10 of the Universal

Declaration of Human Rights, articles 13 (2) of the Arab Charter on Human Rights and

principle 36 (1) of the Body of Principles.

47.

The source reports that Mr. Al-Nukheifi’s, Mr. Al-Shubaili’s and Mr. Al-Hamid’s

cases were all appealed before the Specialized Criminal Court’s Court of Appeal, a

chamber that is under the de facto control of the executive branch of the Government and

cannot therefore be considered as independent or impartial. As such, the authorities violated

the defendants’ right to an effective appeal as provided for in article 16 (7) of the Arab

Charter on Human Rights and article 8 of the Universal Declaration of Human Rights.

(iv)

Category V

48.

The source submits that Mr. Al-Nukheifi’s, Mr. Al-Shubaili’s and Mr. Al-Hamid’s

arrest, prosecution and treatment are the direct result of their political opinions, which led

to their unequal treatment before the law. In relation to the latter two defendants, it is also

due to their status as human rights defenders and affiliation with the Saudi Civil and

Political Rights Association.

49.

The source recalls that in its concluding observations on the second periodic report

of Saudi Arabia, the Committee against Torture stated that it was extremely concerned that

the State party had refused to grant operating licences to human rights organizations, which

had resulted in the disbanding or suspension of activities of groups (ibid., para. 19). In

addition, the Committee expressed concern about reports that the State party had sought to

punish individuals who had reported on alleged human rights violations perpetrated by

State party’s officials or who had objected to State policies on grounds that they were

inconsistent with human rights principles (ibid.).

50.

In addition, the source notes that Saudi Arabia is the country in the Middle East and

North African region that has appeared most frequently in the Secretary-General’s annual

report on reprisals – a total of seven times (2011–2015, 2017 and 2018) – which also

demonstrates a systematic pattern of denying human rights defenders their fundamental

rights and guarantees because of their activism.

51.

Furthermore, the source recalls that various special procedure mandate holders, in a

number of communications sent to the Government of Saudi Arabia, have expressed their

concern that the three defendants’ arrests and subsequent convictions are the result of their

expression of opposing political views. 8 In particular, in a communication on the

persecution of members of the Saudi Civil and Political Rights Association, the Working

Group, the Special Rapporteur on the promotion and protection of the right to freedom of

opinion and expression, the Special Rapporteur on the rights to freedom of peaceful

assembly and of association and the Special Rapporteur on the situation of human rights

defenders raised concern that the information that they continued receiving pointed to a

pattern of repression of human rights defenders in the country.9

52.

The source notes that despite the fact that all three individuals are peaceful human

rights defenders, they were tried before a court of exception that has competence over

terrorist crimes. In this regard, the source refers to the findings of the Special Rapporteur on

the promotion and protection of human rights and fundamental freedoms while countering

terrorism following his country visit to Saudi Arabia, in which he stated that he had been

reliably informed that the Specialized Criminal Court had initially focused on allegations of

political violence linked to Al-Qaida. However, that began to change in 2010 and since then

the Court had been used increasingly for the prosecution of human rights and political

activists (A/HRC/40/52/Add.2, para. 30).

8 See urgent actions SAU 4/2016, SAU 8/2016, SAU 2/2017 and SAU 12/2017. Available at

https://spcommreports.ohchr.org/Tmsearch/TMDocuments.

9 See SAU 4/2016.

A/HRC/WGAD/2019/71

9

53.

The source argues that while human rights defenders are not the only group of

individuals who are being treated unequally before the law as a result of their status (the

same pattern would be identifiable for religious minorities for instance), the behaviour of

both the executive and judiciary branches of the State clearly shows that the arrest, trials

and imprisonment of the three men are a direct result of their political beliefs. Such beliefs,

which are grounded in the defence of human rights and the rule of law as well as a different

interpretation of Islam – as exemplified by the charges against Mr. Al-Nukheifi – are

considered to be “insulting” and unacceptable by the State and pro-State religious scholars.

The imprisonment and mistreatment of the three men while in detention must be understood

as a form of punishment as a result of the State’s intolerance of any form of critical or

dissenting views, whether political or religious. The source submits that given the

theocratic nature of the State of Saudi Arabia, dissenting political and religious views are

often intertwined, as exemplified by the facts of Mr. Al-Nukheifi’s case.

54.

The source concludes that the detentions of Mr. Al-Nukheifi, Mr. Al-Shubaili and

Mr. Al-Hamid stem directly from their peaceful dissenting political and religious opinions,

therefore giving their detention an arbitrary character under category V.

Response from the Government

55.

On 9 August 2019, the Working Group transmitted the allegations made by the

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

Group requested the Government to provide, by 8 October 2019, detailed information about

the current situation of Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid and any

comments on the source’s allegations. Moreover, the Working Group called upon the

Government to ensure the physical and mental integrity of Mr. Al-Nukheifi, Mr. Al-

Shubaili and Mr. Al-Hamid.

56.

In its response of 18 September 2019, the Government states that Mr. Al-Nukheifi,

Mr. Al-Shubaili and Mr. Al-Hamid were duly arrested, tried and convicted in accordance

with the domestic laws and procedures, and that the source has failed to provide any

evidence to refute this.

57.

The Government stresses that article 36 of the Basic Law of Governance provides

for security for all citizens and residents and prohibits confinement, arrest or imprisonment

without reference to provisions of the Law. Article 26 affirms the State’s obligation to

protect human rights in accordance with sharia.

58.

Article 3 of the Code of Criminal Procedure also affirms that no penalty may be

imposed on any person except upon conviction of an act in violation of sharia or statutory

law following a trial conducted in accordance with sharia principles. Therefore, the

criminal justice system includes many procedural guarantees and ensures the fundamental

principle of the presumption of innocence.

59.

According to the Government, the Specialized Criminal Court is an independent

body, subject to the same procedures and guarantees applicable in other courts, established

by, and its judges appointed by, the Supreme Judicial Council in accordance with the law.

The judges must have legal qualifications from accredited universities.

60.

The Government argues that all trial procedures and guarantees must comply with

the relevant international standards, as it is bound by the human rights conventions to which

it is a party. Thus, all actions taken against Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-

Hamid are in line with international human rights law and the Government’s obligations

arising under them.

61.

The Government asks the Working Group to take into account, in a comprehensive

and timely manner, in particular information provided by the State concerned and to always

seek to establish the facts, based on objective, reliable information emanating from relevant

credible sources that they have duly cross-checked to the best extent possible, in

accordance with article 6 (a) and (b) of the Code of Conduct for Special Procedures

Mandate-holders of the Human Rights Council.

Further comments from the source

62.

In its reply of 10 October 2019, the source argues that the Government has failed to

provide any evidence to corroborate its arguments other than stressing compliance with the

A/HRC/WGAD/2019/71

10

domestic criminal laws and procedures. The domestic laws relied upon by the Government

have already been found inconsistent with the principle of legality by United Nations

independent experts, and accordingly they cannot provide a valid legal basis for the arrest,

trial and imprisonment of Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid. National

legislation must itself conform to the relevant international standards. 10 The source

contends that, in this sense, the assessment of the legality of detention should not be limited

to the mere existence of a law but also to the “quality” of the law in order to meet the

standards of lawfulness of deprivation of liberty.

63.

With regard to the Specialized Criminal Court, the source contends that it is a court

of exception as it is composed of a panel of judges who lack judicial independence,

appointed by the Ministry of the Interior. In all cases presented before the Specialized

Criminal Court, the executive branch is both the judge and party in a court that can neither

be considered as impartial and independent nor as respecting any due process rules, which

amounts to a clear violation of article 10 of the Universal Declaration of Human Rights.

64.

The source also considers that the Government’s reference to article 6 (a) and (b) of

the Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council

merely aims to question the credibility of the source’s allegations, which have not been

refuted by the Government.

Discussion

65.

The Working Group thanks the source and the Government for their submissions in

relation to the deprivation of liberty of Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid.

66.

The Working Group notes that multiple urgent actions letters have been sent to the

Government concerning these three individuals. The Working Group notes that the

Government has replied to those communications.11

67.

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

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

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

understood to rest upon the Government if it wishes to refute the allegations (A/HRC/19/57,

para. 68).

Category I

68.

The Working Group will first consider whether there have been violations under

category I, which concerns deprivation of liberty without legal basis.

69.

The source submits that Mr. Al-Nukheifi was not presented with an arrest warrant or

informed of the reasons for his arrest at the time of his arrest. With regard to this allegation,

the Government has responded that the three individuals have been arrested in accordance

with domestic laws and procedure and that the source has not provided evidence to refute

this.

70.

As the Working Group has stated, in order for a deprivation of liberty to have a legal

basis, it is not sufficient for there to be a law authorizing the arrest.12 The authorities must

invoke that legal basis and apply it to the circumstances of the case through an arrest

warrant. Yet, in the case at hand, the Working Group notes that the Government has not

substantiated its claim that a proper warrant was presented at the time of arrest or that the

notification of the reasons of the arrest was rendered during the arrest. The Working Group

therefore concludes that the arrest of Mr. Al-Nukheifi without a warrant and without

invoking the reasons for the arrest is a breach of article 9 of the Universal Declaration of

Human Rights.

71.

The Working Group also notes that the source states that Mr. Al-Nukheifi and Mr.

Al-Shubaili were notified of the charges against them only around eight months after their

10 The source recalls Plesó v. Hungary, para. 59 and Simons v. Belgium, para. 32.

11 SAU 4/2016, SAU 8/2016, SAU 2/2017 and SAU 12/2017. The communications and responses are

available at https://spcommreports.ohchr.org/Tmsearch/TMDocuments.

12 See, for example, opinions No. 46/2019, No. 33/2019, No. 9/2019, No. 46/2018, No. 36/2018 and No.

10/2018.

A/HRC/WGAD/2019/71

11

arrest and questioning. The Working Group recalls that, in order to invoke a legal basis for

deprivation of liberty, the authorities should have informed them of the charges promptly.13

The Government has not contested this allegation. This failure, is therefore a violation of

articles 3 and 9 of the Universal Declaration of Human Rights, as well as principle 10 of the

Body of Principles, and renders their arrest and detention devoid of any legal basis.

72.

Furthermore, the source submits, and the Government does not refute, that Mr. Al-

Nukheifi was brought before a judicial authority eight months after his arrest. In this regard,

Mr. Al-Nukheifi was also denied his right to challenge the legality of his detention before a

judicial authority, in violation of articles 8, 9 and 10 of the Universal Declaration of Human

Rights and principle 32 of the Body of Principles. Moreover, the Saudi authorities violated

Mr. Al-Nukheifi’s right to have the lawfulness of his detention reviewed at regular intervals

by an independent judicial body, as enshrined in principle 39 of the Body of Principles. The

Working Group notes that habeas corpus is in itself a self-standing human right that can be

inferred from articles 8, 9 and 10 of the Universal Declaration of Human Rights

(A/HRC/19/57, paras. 59 and 77).

73.

Turning to the arguments of the source concerning the vagueness of the laws under

which the three individuals were prosecuted and sentenced, the Working Group recalls that

the principle of legality requires that laws be formulated with sufficient precision so that

individuals may have access to and understand the law, and regulate their conduct

accordingly.14 The Working Group also recalls that it has previously found that vaguely and

broadly worded provisions, such as the Anti-Cyber Crime Law and the 2017 counter-

terrorism law invoked in the case at hand, which cannot qualify as lex certa, violate the due

process of law undergirded by the principle of legality in article 11 (2) of the Universal

Declaration of Human Rights.15

74.

The Working Group further notes that laws that are vaguely and broadly worded

may have a deterrent effect on the exercise of the rights to freedom of movement and

residence, freedom of asylum, freedom of thought, conscience and religion, freedom of

opinion and expression, freedom of peaceful assembly and association, participation in

political and public affairs, equality and non-discrimination, and protection of persons

belonging to ethnic, religious or linguistic minorities, as they have the potential for abuse,

including the arbitrary deprivation of liberty.16

75.

Furthermore, the Working Group has made clear in its jurisprudence that detention

pursuant to a law that is inconsistent with international human rights law lacks legal basis

and is therefore arbitrary.17 In this context, the Working Group finds that detention under

the lèse-majesté provisions in article 6 (1) of the Anti-Cyber Crime Law expressly violates

international human rights and lacks legal basis as such.18

76.

For these reasons, the Working Group considers that the deprivation of liberty of Mr.

Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid lacks a legal basis and is thus arbitrary,

falling under category I.

Category II

77.

The source argues that the trials and imprisonment of the three individuals were and

are arbitrary, falling within category II, as they resulted from the legitimate exercise of the

individuals’ right to freedom of expression under article 19 of the Universal Declaration of

Human Rights. According to the source, with regard to Mr. Al-Nukheifi, the deprivation of

his liberty stems from the exercise of his right to freedom of religion or belief under article

13 See, for example, opinion No. 10/2015, para. 34. See also opinion No. 46/2019, para. 51.

14 See, for example, opinion No. 41/2017, paras. 98–101. See also opinion No. 62/2018, paras. 57–59;

and Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para.

22.

15 Opinion No. 10/2018, para. 52.

16 Ibid., para. 55.

17 See, for example, opinions No. 69/2018, para. 21, No. 40/2018, para. 45, and No. 43/2017, para. 34

(detention pursuant to a law that criminalized conscientious objection to military service). See also

opinion No. 14/2017, para. 49.

18 Opinion No. 4/2019, para. 49.

A/HRC/WGAD/2019/71

12

18 of the Universal Declaration of Human Rights. The detentions of Mr. Al-Shubaili and

Mr. Al-Hamid are also the result of their exercise of their right to association.

78.

The Working Group recalls that 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.

79.

The Working Group notes that the Government has admitted in its response that Mr.

Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid were charged, tried and imprisoned for

their online postings in support of the Saudi Civil and Political Rights Association or of

political change. The Working Group is of the view that such sharing of information and

ideas through online media cannot reasonably qualify as posing threats against morality,

public order and the general welfare in a democratic society.

80.

The Working Group further notes that Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-

Hamid were either co-founders or supporters of the Saudi Civil and Political Rights

Association, and that the Government’s actions were an extension of its persecution against

that civic organization, which constitutes unjustified interference with the right to freedom

of association.

81.

Moreover, the Working Group considers that the criticism of the Saudi religious

establishment is not only protected by the freedom of expression but also by the freedom to

manifest one’s religion, as protected by article 18 of the Universal Declaration of Human

Rights. Moreover, the Working Group considers that the arrest and detention of the three

individuals, owing to their criticism of the political authorities, is linked to their exercise of

their right to take part in the conduct of public affairs under article 21 of the Universal

Declaration of Human Rights.

82.

The Working Group wishes to highlight that it has considered a number of cases

concerning deprivation of liberty by the Government under the provisions of the Anti-

Cyber Crime Law.19 The individuals in these prior cases, as with Mr. Al-Nukheifi, Mr. Al-

Shubaili and Mr. Al-Hamid in the current one, were deprived of their liberty for online

comments expressing their political views. For this reason, the Working Group has in the

past found prosecution and imprisonment under the Anti-Cyber Crime Law, as well as the

counter-terrorism law, to be arbitrary when they result from the legitimate exercise of

fundamental human rights.20

83.

The Working Group is therefore of the opinion that the deprivation of liberty of Mr.

Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid is arbitrary, falling within category II, as it

violates articles 18, 19 and 20 (1) and 21 of the Universal Declaration of Human Rights.

Category III

84.

Given its finding that the deprivation of liberty of Mr. Al-Nukheifi, Mr. Al-Shubaili

and Mr. Al-Hamid is arbitrary under category II, the Working Group wishes to emphasize

that in such circumstances no trial should take place. However, as the trials have taken

place, the Working Group will now consider whether the alleged violations of the right to a

fair trial and due process were grave enough to give their deprivation of liberty an arbitrary

character, such that it falls within category III.

85.

The Working Group finds that, in the case of Mr. Al-Nukheifi, the arrest was

conducted without a warrant, and the right to challenge the legality of his detention before a

judicial body was denied. Such an arrest is arbitrary and seriously undermines the capacity

to mount an appropriate legal defence, violating article 9 of the Universal Declaration of

Human Rights and principles 2 and 10 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment.21

86.

With regard to the argument of the source that the three individuals were tried before

a court of exception lacking independence, the Working Group recalls its previous findings

19 See, for example, opinions No. 63/2017, No. 93/2017, No. 68/2018, No. 10/2018 and No. 26/2019.

20 Opinion No. 63/2017, paras. 54–63.

21 Opinion No. 10/2018, para. 72.

A/HRC/WGAD/2019/71

13

that the Specialized Criminal Court is insufficiently independent of the Ministry of the

Interior.22 In this regard, the Working Group notes that the source has submitted that the

Specialized Criminal Court, which tried, convicted and sentenced Mr. Al-Nukheifi, Mr. Al-

Shubaili and Mr. Al-Hamid, is a court of exception with jurisdiction over terrorism cases

that is not composed of independent judges but of a panel appointed by the Ministry of the

Interior, and that the Committee against Torture has expressed concern that the Court is

insufficiently independent of the Ministry of the Interior (CAT/C/SAU/CO/2 and Corr.1,

para. 17). The Working Group further notes the assessment of the Special Rapporteur on

the promotion and protection of human rights and fundamental freedoms while countering

terrorism that the recent power realignment and governmental reorganization has placed the

Ministry’s investigatory powers directly under the authority of the Public Prosecution and

the Presidency of State Security, both of which report directly to the King, and that

concerns regarding the lack of independence of the Court therefore remain undiminished

(A/HRC/40/52/Add.2, para. 47). Contrary to the Government’s response, the Working

Group considers that the Specialized Criminal Court thus cannot be considered an

independent and impartial tribunal replete with the presumption of innocence and

guarantees necessary for defence. The trial before the Court thus contravenes article 10 of

the Universal Declaration of Human Rights.

87.

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

refers the present case to the Special Rapporteur on the independence of judges and lawyers,

for appropriate action.

88.

Moreover, the Working Group considers that the absence of legal counsel for Mr.

Al-Hamid during his interrogations between 21 November 2013 and 14 June 2014, during

which he was subjected to ill-treatment and placed in a detention cell, violated his rights to

legal assistance as part of his right to a fair trial and due process under articles 10 and 11 (1)

of the Universal Declaration of Human Rights and principles 17 and 18 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

89.

Furthermore, the source alleges, and the Government does not contest, that Mr. Al-

Shubaili was subjected to in camera hearings before the Specialized Criminal Court, in

violation of his right to a public hearing under articles 10 and 11 (1) of the Universal

Declaration of Human Rights. The Government has offered no justification that may

warrant such an exceptional procedure. The Working Group therefore concludes that these

hearings in camera constitute a breach of articles 10 and 11 (1) of the Universal Declaration

of Human Rights.

90.

Given the above considerations, the Working Group concludes that the violations of

the right to a fair trial and due process are of such gravity as to give the deprivation of

liberty of Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid an arbitrary character that

falls within category III.

Category V

91.

The Working Group will now examine whether the deprivation of liberty of Mr. Al-

Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid constitutes discrimination under international

law for the purpose of category V.

92.

The Working Group notes that Mr. Al-Shubaili and Mr. Al-Hamid are human rights

defenders and co-founders of the Saudi Civil and Political Rights Association who reported

human rights violations to the Human Rights Council and to special procedure mandate

holders. Mr. Al-Nukheifi is also a political activist, and has been imprisoned in the past for

three years for accusing the local authorities in Jazan of corruption and human rights abuses

on television, and in the present case for his consultation with the Special Rapporteur on

extreme poverty and human rights, as well as for public calls for the release of members of

the Saudi Civil and Political Rights Association and the creation of a directly elected

parliament. The Working Group is convinced that the three individuals were targeted

because of their activities as human rights defenders.

93.

Moreover, the Government’s reprisals against Mr. Al-Nukheifi for his consultation

with the Special Rapporteur on extreme poverty and human rights and against Mr. Al-

22 Ibid., para. 73.

A/HRC/WGAD/2019/71

14

Shubaili and Mr. Al-Hamid for their reporting to United Nations human rights mechanisms

raise particular concerns for the Working Group.

94.

The Working Group notes that Mr. Al-Nukheifi’s, Mr. Al-Shubaili’s and Mr. Al-

Hamid’s political views and convictions are clearly at the centre of the present case and that

the authorities have displayed an attitude towards them that can only be characterized as

discriminatory. Indeed, they have been the target of persecution and there is no explanation

for this other than their exercise of the right to express such views and convictions.

95.

For these reasons, the Working Group considers that the deprivation of liberty of Mr.

Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid constitutes a violation of articles 2 and 7

of the Universal Declaration of Human Rights on the grounds of discrimination based on

political or other opinion, as well as on their status as human rights defenders, aimed at and

resulting in ignoring the equality of human beings. Their deprivation of liberty therefore

falls under category V.

96.

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

refers the present case to the Special Rapporteur on the situation of human rights defenders

for appropriate action.

97.

In its 28-year history, the Working Group has found Saudi Arabia in violation of its

international human rights obligations in about 60 cases. 23 The Working Group is

concerned that this indicates a systemic problem with arbitrary detention in Saudi Arabia,

which amounts to a serious violation of international law. The Working Group recalls that

under certain circumstances, widespread or systematic imprisonment or other severe

deprivation of liberty in violation of the rules of international law may constitute crimes

against humanity.24

Disposition

98.

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

The deprivation of liberty of Issa al-Nukheifi, Abdulaziz Youssef Mohamed al-

Shubaili and Issa Hamid al-Hamid, being in contravention of articles 2, 3, 7, 9, 10,

11 (1), 18, 19, 20 (1) and 21 of the Universal Declaration of Human Rights, is

arbitrary and falls within categories I, II, III and V.

99.

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

necessary to remedy the situation of Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid

without delay and bring it into conformity with the relevant international norms, including

those set out in the Universal Declaration of Human Rights. The Working Group

encourages the Government to ratify the International Covenant on Civil and Political

Rights.

100.

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

case, the appropriate remedy would be to release Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr.

Al-Hamid immediately and accord them an enforceable right to compensation and other

reparations, in accordance with international law.

23 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. 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, No. 68/2018, No. 22/2019, No. 26/2019 and No. 56/2019.

24 A/HRC/13/42, para. 30; and 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.

A/HRC/WGAD/2019/71

15

101.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid and to take appropriate measures against

those responsible for the violation of their rights.

102.

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

refers the present case to the Special Rapporteur on the independence of judges and lawyers

and the Special Rapporteur on the situation of human rights defenders for appropriate

action.

103.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

104.

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

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

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

(a)

Whether Mr. Al-Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid have been

released and, if so, on what date;

(b)

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

Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid;

(c)

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

Nukheifi, Mr. Al-Shubaili and Mr. Al-Hamid’s rights and, if so, the outcome of the

investigation;

(d)

Whether any legislative amendments or changes in practice have been made

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

line with the present opinion;

(e)

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

105.

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.

106.

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.

107.

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.25

[Adopted on 21 November 2019]

25 Human Rights Council resolution 42/22, paras. 3 and 7.