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.23-10042 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-sixth session, 27 March–5 April 2023
Opinion No. 17/2023 concerning Aïda al-Ghamdi and Adel al-Ghamdi
(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 51/8.
2.
In accordance with its methods of work,1 on 23 November 2022, the Working Group
transmitted to the Government of Saudi Arabia a communication concerning Aïda al-Ghamdi
and Adel al-Ghamdi. The Government replied to the communication on 23 January 2023.
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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/17
General Assembly
Distr.: General
8 June 2023
Original: English
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Submissions
Communication from the source
4.
Aïda al-Ghamdi is a Saudi citizen born in 1958. She usually resides in Dammam,
Saudi Arabia.
5.
Adel al-Ghamdi is a Saudi citizen born in 1997. He usually resides in Dammam, Saudi
Arabia. He is the youngest son of Ms. Al-Ghamdi.
a.
Context
6.
The source submits that Ms. Al-Ghamdi is a relative of a political and human rights
activist who left Saudi Arabia in 2000. In 2004, while abroad, the activist publicized his
peaceful activism and campaigned for human rights and political reform in Saudi Arabia. He
was granted political asylum abroad in 2012.
b.
Arrest and detention
7.
Reportedly, on 26 March 2018, while they were in their car on the way to a shopping
centre located in Hay al-Jamiaa, Ms. Al-Ghamdi and her youngest son, Mr. Al-Ghamdi, were
both arrested without a warrant by agents of the General Directorate of Investigations (the
Mabahith) of the Ministry of the Interior, who were wearing civilian clothes. The Mabahith
agents arrived in several vehicles and forced Ms. Al-Ghamdi and Mr. Al-Ghamdi to stop
their car before taking them to an unknown destination.
8.
At the same time as they were being arrested, another member of Ms. Al-Ghamdi and
the activist’s family was also arrested, in Dammam. That same day, that family member was
transferred to Riyadh, where he was coerced into recording a video, in which he denounced
the activist living abroad and asserted that his family had no ties with him, in exchange for
Ms. Al-Ghamdi and Mr. Al-Ghamdi’s freedom. However, although the video was posted by
the intelligence services on social media (Facebook and Twitter), the authorities did not
release Ms. Al-Ghamdi and Mr. Al-Ghamdi. At the present time, the above-mentioned family
member is under police surveillance; he wears an electronic monitoring bracelet and is
forbidden from having any contact with the activist living abroad.
9.
Four days after the arrest of the individuals, an agent of the Mabahith contacted
another family member of Ms. Al-Ghamdi and indicated that, if any family member tried to
contact the activist living abroad, Ms. Al-Ghamdi would be sentenced and executed.
10.
After their arrest, both Ms. Al-Ghamdi and Mr. Al-Ghamdi were reportedly held in
secret detention for three months. Their family had no knowledge of their whereabouts and
approached various authorities, including the Ministry of the Interior, to enquire about them.
They all denied that they were being held in detention. Ms. Al-Ghamdi and Mr. Al-Ghamdi
were therefore in a situation of enforced disappearance.
11.
After three months, Ms. Al-Ghamdi was allowed to make a brief telephone call to her
family to inform them that she and her son were being held in Dhahban prison in Jeddah.
12.
Reportedly, both Ms. Al-Ghamdi and Mr. Al-Ghamdi claim that they were tortured in
front of each other. They were severely beaten, punched and kicked, in particular in the face,
and both had cigarettes put out on their skin.
13.
During the first year of Ms. Al-Ghamdi and Mr. Al-Ghamdi’s detention in Dhahban
prison, their family contacted several lawyers, but all refused to take the case because of its
political nature and for fear of reprisals.
14.
After 13 months in Dhahban prison, Ms. Al-Ghamdi and Mr. Al-Ghamdi were
transferred to Dammam prison and brought before a competent judicial authority on an
unspecified date. They were accused of communicating by telephone with their family
member living abroad – their communications having been recorded; Ms. Al-Ghamdi was
accused of receiving on several occasions sums of money from her family member as
material aid, which she did not deny; and both were accused of not disclosing their telephone
contacts to the authorities.
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15.
As soon as they were transferred to Dammam prison, a family member managed to
obtain a lawyer to prepare for a possible trial. The lawyer appointed by the family tried to
consult about the criminal proceedings and requested to visit his clients in prison, but to no
avail. In reaction to pressure put upon him, the lawyer subsequently decided to withdraw
from the case.
16.
During a visit to Dammam prison, their family learned that a closed trial had taken
place and that Ms. Al-Ghamdi had been sentenced to 14 years’ imprisonment and Mr. Al-
Ghamdi to 5 years’ imprisonment. The family was unable to obtain further information about
the judicial process and the conditions under which the trial had been held.
c.
Analysis of violations
i.
Category I
17.
The source submits that Ms. Al-Ghamdi and Mr. Al-Ghamdi were arrested in the
street in Jeddah by agents of the State security (the Mabahith) who were wearing plain
clothes, without an arrest warrant and without being informed of the reasons for their arrest
or of their rights, contrary to principle 10 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
18.
Following their arrest, both were taken to an unknown location and subjected to what
amounted to enforced disappearance for at least three months, from 26 March to 26 June
2018. The authorities intentionally removed them from the protection of the law by subjecting
them to enforced disappearance and by denying them access to the outside world. The
enforced disappearance of Ms. Al-Ghamdi and Mr. Al-Ghamdi constitutes a violation of their
right to be considered as persons before the law, in contravention of article 6 of the Universal
Declaration of Human Rights.
19.
Ms. Al-Ghamdi and Mr. Al-Ghamdi were arrested, detained in a secret location for
three months, then transferred to Dhahban prison in Jeddah, without ever being presented
before a competent judicial authority. It was only in early July 2019, after 13 months of
detention in the prison in Jeddah under the custody of the General Directorate of
Investigation, that they were presented for the first time before a judicial authority. The fact
of being held in detention for over 15 months without being brought before a judicial
authority constitutes a violation of articles 3, 6 and 9 of the Universal Declaration of Human
Rights.
20.
For these reasons, the source argues that the deprivation of liberty of Ms. Al-Ghamdi
and Mr. Al-Ghamdi, from 26 March 2018 to early July 2019, is without legal basis and is
arbitrary under category I.
ii.
Category II
21.
The source submits that Ms. Al-Ghamdi’s relative living abroad was known as a
dissident critical of the regime of Saudi Arabia and that he quickly became a target of the
Government’s crackdown on dissent. After being threatened with arrest and even death, he
decided to flee the country and seek asylum abroad. His departure did not prevent him from
campaigning to denounce violations and he continued to advocate, from abroad, for reform
in Saudi Arabia.
22.
The arrest of Ms. Al-Ghamdi and Mr. Al-Ghamdi, and their subsequent ill-treatment,
was intended not only as reprisal against the relative living abroad for peacefully expressing
dissenting views, but was also to blackmail and silence him.
23.
According to the source, the cause of Ms. Al-Ghamdi and Mr. Al-Ghamdi’s arbitrary
deprivation of liberty does not stem from their own exercise of the rights guaranteed by the
Universal Declaration of Human Rights, but rather from the exercise of those rights by their
family member living abroad.
24.
The source submits that Ms. Al-Ghamdi and Mr. Al-Ghamdi’s deprivation of liberty
is all the more arbitrary because it results from the exercise by a family member living outside
of the country of the rights and freedoms guaranteed by articles 7, 14, 18 and 19 of the
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Universal Declaration of Human Rights. Their detention must therefore be considered
arbitrary under category II.
iii.
Category III
25.
The source argues that the State party’s blatant and total disregard for international
fair trial standards, as set out in the Universal Declaration of Human Rights and other
international instruments, is of such gravity as to render Ms. Al-Ghamdi and Mr. Al-
Ghamdi’s deprivation liberty arbitrary.
26.
Both individuals were detained for over a year without being presented before a
competent judicial authority and without being charged or informed of the charges against
them, in violation of principles 11 and 37 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
27.
The source submits that, consequently, they were unable to challenge the lawfulness
of their detention, which constitutes a violation of articles 8, 9 and 10 of the Universal
Declaration of Human Rights and is contrary to principles 32 and 39 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment.
28.
At the time of the submission of their communication, both Ms. Al-Ghamdi and Mr.
Al-Ghamdi were unaware of the legal charges of which they were convicted and for which
they were sentenced to heavy prison terms; their family ties with an activist living abroad
could in no way constitute a crime or punishable offence.
29.
The source submits that the non-observance of the international norms relating to the
right to a fair trial, established in the Universal Declaration of Human Rights, gives Ms. Al-
Ghamdi and Mr. Al-Ghamdi’s detention an arbitrary character under category III.
Response from the Government
30.
On 23 November 2022, the Working Group transmitted the allegations from the
source to the Government of Saudi Arabia under its regular communications procedure. The
Working Group requested the Government to provide, by 23 January 2023, detailed
information about the current situation of Ms. Al-Ghamdi and Mr. Al-Ghamdi and to clarify
the legal provisions justifying their continued detention, as well as the compatibility of such
detention with the obligations of Saudi Arabia under international human rights law.
Moreover, the Working Group called upon the Government to ensure the physical and mental
integrity of Ms. Al-Ghamdi and Mr. Al-Ghamdi. In the current context of the global
coronavirus disease (COVID-19) pandemic, and in accordance with the World Health
Organization recommendations of 15 March 2020 concerning the response to COVID-19 in
places of detention, the Working Group urged the Government to prioritize the use of non-
custodial measures at all stages of criminal proceedings, including during the pretrial, trial
and sentencing phases, as well as after sentencing.
31.
The Government responded to the communication on 23 January 2023. In its
response, the Government provided information on the arrest of Ms. Al-Ghamdi and Mr. Al-
Ghamdi and denied their allegations, describing them as incorrect and unsubstantiated. The
Government states that the arrest and trial of the two individuals were carried out on sound
legal grounds, with full respect for the law of Saudi Arabia and consistent with international
conventions to which Saudi Arabia is a party.
32.
The Government claims that Ms. Al-Ghamdi and Mr. Al-Ghamdi were arrested on
the basis of two arrest warrants that were issued against them by the competent authority, in
accordance with articles 2 and 5 of the Counter-terrorism and Financing of Terrorism Act. It
states that Ms. Al-Ghamdi was charged with committing a number of terrorism-related
crimes, including the following: endorsement of a terrorist entity; financing of terrorism and
terrorist acts; inciting two of her sons to travel to conflict zones and join a terrorist entity;
and posting on the Internet content prejudicial to public order, which constitutes an offence
punishable under the Repression of Cybercrime Act.
33.
The Government states that Mr. Al-Ghamdi was also charged with committing a
number of terrorism-related crimes, including participating in the financing of terrorism and
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terrorist acts, and producing, posting and storing on the Internet content prejudicial to public
order (punishable under the Repression of Cybercrime Act).
34.
The Government maintains that both Ms. Al-Ghamdi and Mr. Al-Ghamdi were
informed of the reasons for their arrest in accordance with article 36 (1) of the Code of
Criminal Procedure, which stipulates that “persons who are detained shall be treated in a
matter conducive to the preservation of their dignity and shall not be harmed physically or
mentally. They shall be informed of the reasons for their detention and shall have the right to
contact anyone whom they wish to notify of their detention”. In addition, article 116 of the
Code stipulates that “persons who are arrested or detained shall be promptly informed of the
grounds for their arrest or detention and shall have the right to contact anyone whom they
wish to notify”.
35.
According to the Government, Ms. Al-Ghamdi and Mr. Al-Ghamdi acknowledged by
their signatures that they had been informed of their legal rights, including the right to legal
assistance in accordance with article 22 of the implementing regulations of the Code of
Criminal Procedure, and of the charges against them, in accordance with article 101 (1) of
the Code. Thereafter, their cases were referred by the Public Prosecutor to the competent
court; they subsequently appeared before this court, in accordance with the law.
36.
The Government avers that Ms. Al-Ghamdi and Mr. Al-Ghamdi attended the trial in
the presence of the Public Prosecutor. The Public Prosecutor’s statement was read to them
and a copy of it was handed over, in accordance with article 160 of the Code of Criminal
Procedure, which stipulates that, during the arraignment, the court shall inform the accused
of the charges against him or her.
37.
Regarding legal representation, the Government states that the court respected Ms.
Al-Ghamdi and Mr. Al-Ghamdi’s right to appoint a lawyer to represent them, in accordance
with article 4 (1) of the Code of Criminal Procedure, and that if they did not have the financial
ability to appoint a lawyer, they could have requested the court to assign a lawyer to defend
them at the expense of the State, in accordance with article 139 of the Code. In their case,
they requested the appointment of a number of legal representatives to defend them, and their
request was granted.
38.
In its response, the Government explains the law on court matters and submits that
Ms. Al-Ghamdi and Mr. Al-Ghamdi were given a fair hearing, which was followed by a
judgment. The concerned persons had the right to object to the judgment within 30 days of
the date on which they received a copy of it, in accordance with article 192 (1) of the Code
of Criminal Procedure. After the defendants and the Public Prosecutor had objected to the
judgment, the (first instance) judges confirmed their ruling, and the case was submitted to
the Court of Appeal, in accordance with article 196 of the Code of Criminal Procedure, which
stipulates that “the division that rendered the challenged judgment shall examine the grounds
on which the objection is based, without hearing submissions, unless necessary…”.
39.
The Government submits that due process was followed and the Appeal Court ruled
against the defendants. The Public Prosecutor filed an appeal for cassation and the Supreme
Court subsequently overturned the ruling and returned the case to the Appeal Court to be
decided anew by different judges, in accordance with the law. The Appeal Court ultimately
delivered a judgment, in which Ms. Al-Ghamdi was sentenced to imprisonment for 16 years,
while her son was given 14 years’ imprisonment. Although the parties were informed of their
right to file an appeal for cassation of that decision, they did not do so, thereby rendering the
judicial review complete and the judgment final and enforceable.
40.
Ms. Al-Ghamdi and Mr. Al-Ghamdi are currently serving their sentences at the
General Directorate of Investigation (the Mabahith) prison in eastern Saudi Arabia.
41.
The Government reiterates that it protects and promotes all human rights through its
application of the principle of legality, and that no one can be punished except as is provided
by law. The Government emphasizes that terrorism is one of the most serious threats to
international peace and security, as confirmed in international charters, instruments and
resolutions, including General Assembly resolution 60/288 on the United Nations Global
Counter-Terrorism Strategy.
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42.
The Government states that it recognizes and is committed to all human rights,
including those relating to fair trial, equality before the law and the right to freedom of
opinion and expression, and that it guarantees every human being the exercise of this right,
unless there is infringement or abuse of the rights or reputations of others, national security,
public order, public health or morals.
43.
Regarding the treatment of prisoners and other detained persons, the Government
refers to provisions of its domestic laws that guarantee detainees’ or prisoners’ rights, such
as article 2 of the Code of Criminal Procedure, which prohibits physical or mental harm to
arrested persons, and subjecting such persons to torture or degrading treatment; article 36 of
the Code, which stipulates that arrested persons must be treated in a manner that preserves
their dignity, that they shall not be harmed physically or mentally, and that they must be
informed of the reasons for their detention; article 28 of the Prison and Detention Act, which
stipulates that prisoners or detainees may not be subjected to any type of assault and that
disciplinary action shall be taken against civilian or military personnel who commit such acts,
without prejudice to any criminal penalty they may incur; and article 2 (8) of Royal Decree
No. 43. (1377) of 1958, which prohibits ill-treatment, coercion, torture and other denials of
personal liberties by public officials.
44.
The Government also mentions the existence of the Human Rights Commission as an
agency that strengthens the observance of human rights of detained persons and prisoners,
by conducting visits to prisons and detention centres at any time, without permission from
the competent authority, and receives and verifies complaints relating to human rights by
taking legal action as appropriate.
45.
Further rebutting the allegations from the source, the Government emphasizes that
Ms. Al-Ghamdi and Mr. Al-Ghamdi were informed of the reasons for their arrest and of the
charges against them, as well as of their rights, including the right to seek the assistance of a
lawyer or an agent in the investigation and trial stages. They were thus not deprived of the
protection of the law; this right is protected by the law. Their case files were referred to the
competent court which charged them initially.
46.
The Government denies that Ms. Al-Ghamdi and Mr. Al-Ghamdi were subjected to
enforced or involuntary disappearance, as they were detained in a known and designated
place. The Government notes that a communication was received in the past from the
Working Group on Enforced or Involuntary Disappearances regarding Ms. Al-Ghamdi and
Mr. Al-Ghamdi, and that, in its response, it specified the location of their detention at the
time. The Government submits that, following the Working Group’s reference to its response
at its 116th session, held from 10 to 14 September 2018, it did not received any further
communication relating to the issue. The legislation of Saudi Arabia provides the requisite
human rights protection against enforced disappearance and prohibits all orders or
instructions that direct, authorize or encourage enforced disappearance. In the light of the
foregoing, the Government maintains that there was no violation against Ms. Al-Ghamdi and
Mr. Al-Ghamdi under category I.
47.
The Government dismisses as incorrect the allegation made by the source that the
arrest and detention of Ms. Al-Ghamdi and Mr. Al-Ghamdi were a reprisal for the activities
of a family member living abroad because, as it has already been shown, their arrest was
based on charges of committing a number of terrorism-related offences, including supporting
a terrorist entity, and financing and participating in the financing of terrorism and terrorist
acts. The Government thus denies that the detention of Ms. Al-Ghamdi and Mr. Al-Ghamdi
was a violation under category II.
48.
The Government claims that, during the legal proceedings against Ms. Al-Ghamdi
and Mr. Al-Ghamdi, including the prosecution, trial and enforcement of the court’s judgment,
the respective competent authorities ensured that the measures taken in their case were based
on the legal provisions in force in Saudi Arabia, and that they were consistent with
international standards of fair trial and with the human rights conventions to which the
Government has acceded. The Government thus maintains that there was no violation, in its
view, of Ms. Al-Ghamdi and Mr. Al-Ghamdi’s rights under category III.
49.
In response to the Working Group’s call upon the Government to ensure the physical
and mental safety of Ms. Al-Ghamdi and Mr. Al-Ghamdi in the context of the global COVID-
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19 pandemic and in accordance with the recommendations of the World Health Organization
for addressing COVID-19 in places of detention, the Government points out that Saudi
Arabia was one of the first countries to take many measures and procedures to address the
outbreak of COVID-19 in prisons and detention centres. Preventive measures and
precautions were also applied in prisons to prevent the spread of COVID-19, in accordance
with the protocols and guidelines adopted by the Ministry of Health for dealing with the
pandemic. Furthermore, the majority of detainees and prisoners were given COVID-19
vaccines under the supervision of competent medical staff, in accordance with the guidelines
of the Ministry of Health.
50.
In concluding its response, the Government reminded the Working Group of the Code
of Conduct for Special Procedure Mandate Holders of the Human Rights Council, adopted
by the Council in its resolution 2/5 of 18 June 2007, in particular, the requirement that
mandate holders should carry out their mandate with full respect for the national legislation
and regulations of the country in which they are carrying out their mission, give due
consideration to the information provided on the case, assess all information, in particular
allegations from sources to thematic mandate holders, and ensure that communications on
the case are not manifestly unfounded or politically motivated.
Additional comments from the source
51.
The Government’s response was submitted to the source for additional comments,
which were provided on 8 February 2023.
52.
The source notes that the Government’s response on the merits merely consists of
successive general statements about the legislation of Saudi Arabia, which fail to provide any
concrete and detailed information on the current situation of Ms Al-Ghamdi and Mr. Al-
Ghamdi and on measures taken to ensure their equal and effective access to justice.
53.
With regard to the enforced disappearance and incommunicado detention of the two
individuals, the Government alleges that neither Ms Al-Ghamdi nor Mr. Al-Ghamdi were
held in secret detention. To support that claim, the Government refers to its cooperation with
the Working Group on Enforced and Involuntary Disappearances. The source submits that
the Government has mistakenly conflated the act of responding to the Working Group on
Enforced and Involuntary Disappearances and fulfilment of its international obligations.
54.
With regard to the practice of torture in detention, the source submits that, despite the
Government’s statement that all its legislative provisions prohibit ill-treatment and torture of
detainees and prisoners, the legislation is far from implemented in practice. Several special
procedure mandate holders and United Nations bodies have highlighted the use of torture in
detention in the country.
55.
Furthermore, and contrary to the Government’s response, allegations of torture are
rarely, if ever, impartially investigated in Saudi Arabia. The Committee against Torture
recommended that the State party conduct impartial investigations into all allegations of
torture.2 However, the State institutions responsible for these investigations are independent
only in theory; they are actually under the direct authority of the executive. Thus, the structure
of the institutions also contributes to a climate of impunity that encourages the practice of
torture.
56.
The source recalls that several United Nations human rights mechanisms have
consistently raised concerns about systematic violations of procedural rights, in particular of
individuals, such as Ms. Al-Ghamdi and Mr. Al-Ghamdi, who are arrested under the Counter-
terrorism and Financing of Terrorism Act.
57.
The source highlights that Ms. Al-Ghamdi and Mr. Al-Ghamdi’s case falls into a well-
defined and widely recognized pattern of arbitrary arrests and detention of political opponents
under the Counter-terrorism and Financing of Terrorism Act, which fails to uphold any
standard of lawfulness.
2 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 8.
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58.
This is the case with Ms. Al-Ghamdi and Mr. Al-Ghamdi, as illustrated by the
response of the Government to the communication of the Working Group on Enforced and
Involuntary Disappearances, which merely states that they were “under investigation”, for
having supposedly committed acts criminalized under the Counter-terrorism and Financing
of Terrorism Act – without specifying the nature of the charges.
59.
The source submits that it is even more concerning that the Government makes
general statements regarding the rights of Ms. Al-Ghamdi and Mr. Al-Ghamdi to legal
assistance and to receive visits. The Government mentions the right to legal counsel and the
alleged appointment “of a number of legal representatives to defend them”, but does not
provide any concrete information about the legal counsel’s request to visit them.
60.
Furthermore, the Government summarizes different stages of the judicial procedure
(first instance, appeal and cassation) relating to the conviction of Ms. Al-Ghamdi and Mr.
Al-Ghamdi. The Government claims that, although they were informed of their right to
contest the decision of the Appeal Court, they decided not to.
61.
The Government claims that it was Ms. Al-Ghamdi and Mr. Al-Ghamdi’s free choice
not to appeal for cassation. However, the source notes that the harsh penalties handed down
on appeal or cassation are aimed at depriving victims of the right to appeal, and are part of a
systematic policy intended to give United Nations human rights experts the impression that
the decisions rendered are fair.
62.
The source also notes that Ms. Al-Ghamdi’s first sentence was increased on appeal by
the judge who refused to consider her statement about being subjected to torture to extract
confessions, despite her insistence. Indeed, upon receiving copies of the judgments handed
down by the Appeal Court, Ms. Al-Ghamdi and Mr. Al-Ghamdi were surprised to learn that
the Appeal Court had increased their sentences to 16 years and 14 years, respectively.
63.
The source further notes that, in its response, the Government does not provide any
information or reason regarding the increase in Ms. Al-Ghamdi and Mr. Al-Ghamdi’s
sentences on appeal. It merely points out that neither of them objected to the decision.
However, the source claims that it is clear that they did not object to the increased sentences
owing to fear of being condemned to life imprisonment.
64.
Lastly, the source notes that, in recent years, judges in the Appeal Court have
systematically doubled or tripled the sentences handed down in the first instance in all cases
with political connotations or allegedly linked to terrorism.
Discussion
65.
The Working Group thanks the source and the Government for their submissions.
66.
In determining whether Ms. Al-Ghamdi and Mr. Al-Ghamdi’s detention was arbitrary,
the Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
law 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.3
67.
The source submits that the detention of Ms. Al-Ghamdi and Mr. Al-Ghamdi is
arbitrary under categories I, II and III. The Working Group will consider these allegations in
turn.
Category I
68.
The Working Group has previously stated that, for a deprivation of liberty to have a
legal basis, it is not sufficient that there is a law that may authorize the arrest. The authorities
must invoke the legal basis and apply it to the circumstances of the case. This is typically
done through an arrest warrant or arrest order (or equivalent document).4 The reasons for the
arrest must be provided immediately upon arrest and must include not only the general legal
3 A/HRC/19/57, para. 68.
4 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
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basis of the arrest, but also enough factual specifics to indicate the substance of the complaint,
such as the wrongful act and the identity of an alleged victim.5 The Working Group notes
that Ms. Al-Ghamdi and Mr. Al-Ghamdi were not arrested in flagrante delicto, in which case
the opportunity to obtain a warrant would not be typically available.
69.
The source submits that Ms. Al-Ghamdi and Mr. Al-Ghamdi were arrested without
arrest warrants and without being informed of the reasons for their arrest or their rights. The
Government claims that they were arrested pursuant to arrest warrants issued by the
competent authority, in accordance with articles 2 and 5 of the counter-terrorism law, and
that they were detained in accordance with the law. The Government also claims that they
were informed of the grounds for their arrest, in accordance with article 36 (1) of the Code
of Criminal Procedure.
70.
The Working Group observes that, while the Government claims that Ms. Al-Ghamdi
and Mr. Al-Ghamdi were arrested pursuant to arrest warrants issued by the competent
authority, it has not provided information as to when the arrest warrants were presented to
them. Furthermore, the Government has not provided any specific information or
documentation to support its claim that Ms. Al-Ghamdi and Mr. Al-Ghamdi were informed
of the reasons for their arrest.
71.
In the absence of evidence to the contrary, the Working Group considers that the
source has presented a prima facie case that, at the time of their arrest, Ms. Al-Ghamdi and
Mr. Al-Ghamdi were not presented with arrest warrants or promptly informed of the reasons
for their arrest. The Working Group thus finds that the authorities contravened article 9 of
the Universal Declaration of Human Rights as well as principle 10 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment.
72.
The source alleges, and the Government does not refute, that Ms. Al-Ghamdi and Mr.
Al-Ghamdi were held in detention without being presented before a judicial authority and
without being charged or informed of the charges against them from March 2018 until early
July 2019 – that is, more than 15 months after their arrest. The Working Group notes that
Ms. Al-Ghamdi and Mr. Al-Ghamdi were not brought promptly before a judge – that is,
within 48 hours of their arrest, barring absolutely exceptional circumstances, which must be
justified, in line with international standards and as reiterated in the Working Group’s
jurisprudence.6 The Working Group also notes that Ms. Al-Ghamdi and Mr. Al-Ghamdi were
not afforded the right to bring proceedings before a court for it to decide without delay about
the lawfulness of their detention, in accordance with articles 3, 8 and 9 of the Universal
Declaration of Human Rights and principles 11, 32 and 37 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment. Judicial oversight
of deprivation of liberty is a fundamental safeguard of personal liberty and is essential in
ensuring that detention has a legal basis.7 Furthermore, bearing in mind that pretrial detention
should be the exception rather than the rule, the Working Group considers that the detention
of Ms. Al-Ghamdi and Mr. Al-Ghamdi following their arrest lacked a legal basis, as it was
not based on an individualized determination that detention was reasonable and necessary,
taking into account all the circumstances that would render it unnecessary.8
73.
The Government submits that Ms. Al-Ghamdi and Mr. Al-Ghamdi were arrested
pursuant to the Counter-terrorism and Financing of Terrorism Act. The Government does not
contest the source’s submission that the individuals were arrested and detained for 15 months
without being presented before a judicial authority and without being charged or informed of
the charges against them. Moreover, the Government does not provide an explanation on its
use of the Counter-terrorism and Financing of Terrorism Act to arrest and detain individuals.
5 Opinions No. 30/2017, paras. 58 and 59; No. 30/2018, para. 38; No. 85/2021, para. 69; and No.
79/2022, para. 58.
6 Opinions No. 2/2018, para. 49; No. 83/2018, para. 47; No. 11/2019, para. 63; No. 30/2019, para. 30;
and No. 34/2021, para. 72.
7 Opinions No. 33/2019, para. 50; No. 44/2019, para. 54; No. 45/2019, para. 53; No. 59/2019, para. 51;
and No. 65/2019, para. 64.
8 A/HRC/19/57, paras. 48–58.
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74.
The Working Group has stated in its jurisprudence that, vaguely and broadly worded
provisions, such as the Anti-cybercrime Law and the 2017 Anti-terrorism Law, 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.9 The Working Group reiterates
that the lack of procedural safeguards in law contributes to prolonged detention, violations
of the presumption of innocence and delayed trials, in contravention of article 9 of the
Universal Declaration of Human Rights, as well as of principles 11, 37 and 38 of the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
75.
The source alleges that, after their arrest, both Ms. Al-Ghamdi and Mr. Al-Ghamdi
were held in secret detention for three months. Their family members approached various
authorities, including the Ministry of the Interior, all of which denied that they were in
detention. Ms. Al-Ghamdi and Mr. Al-Ghamdi were thus in a situation of enforced
disappearance during this period.
76.
The Government denies that Ms. Al-Ghamdi and Mr. Al-Ghamdi were subjected to
enforced or involuntary disappearance, as they were detained in a known and designated
place. The Government supports its assertion with reference to its response to a
communication that it received from the Working Group on Enforced or Involuntary
Disappearances, in which it specified the location of their detention. The Government
stressed that its laws provide the requisite human rights protection against enforced
disappearances.
77.
The Working Group notes that the Government has denied that Ms. Al-Ghamdi and
Mr. Al-Ghamdi were subjected to enforced disappearance. It also notes the Government’s
reference to national legislation and its response to the Working Group on Enforced and
Involuntary Disappearances. However, in the absence of specific evidence to the contrary,
the Working Group is of the view that the Government failed to demonstrate that it had
notified the family of Ms. Al-Ghamdi and Mr. Al-Ghamdi of their fate and whereabouts
during the three months following their arrest.
78.
For these reasons, the Working Group considers that the deprivation of liberty of Ms.
Al-Ghamdi and Mr. Al-Ghamdi during the first three months following their arrest entails
wilful refusal on the part of the authorities to disclose their fate or whereabouts or to
acknowledge their detention. Their deprivation of liberty thus lacks a valid legal basis and is
inherently arbitrary, as it placed them outside the protection of the law. The Working Group
recalls that enforced disappearance constitutes a particularly aggravated form of arbitrary
detention, in violation of articles 6 and 8 of the Universal Declaration of Human Rights.10
The Government’s failure to provide their families with notification of their arrest and the
location of their detention was also a violation of principle 16 (1) of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment.
79.
For the reasons set out above, the Working Group thus finds that the Government
failed to establish a legal basis for the arrest and detention of Ms. Al-Ghamdi and Mr. Al-
Ghamdi, rendering their deprivation of liberty arbitrary under category I.
Category II
80.
The source submits that Ms. Al-Ghamdi and Mr. Al-Ghamdi’s deprivation of liberty
results from the exercise by their family member, who is living abroad, of the rights and
freedoms guaranteed by articles 7, 14, 18 and 19 of the Universal Declaration of Human
Rights. The Working Group will consider these allegations under category V.
Category III
81.
The source claims that Ms. Al-Ghamdi and Mr. Al-Ghamdi’s deprivation of liberty
falls within category III, as there was total or partial non-observance of the international
norms relating to the right to a fair trial, the gravity of which gives their deprivation of liberty
an arbitrary character.
9 Opinions No. 71/2019, para. 73; and No. 30/2022, para. 80.
10 Opinions No. 13/2020; and No. 34/2021.
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GE.23-10042
11
82.
According to the source, following their arrest on 26 March 2018, Ms. Al-Ghamdi
and Mr. Al-Ghamdi were held in secret detention for three months. It was only in early July
2019, after 13 months of detention in Dhanban Centra Prison, that they were presented for
the first time before a judicial authority and subsequently tried in a closed trial. The Working
Group notes that, in its response, the Government provided general information about their
arrest, detention and subsequent trial, without providing any specific information about the
duration of the proceedings or any explanation for the delay.
83.
In the absence of information from the Government, the Working Group considers
that Ms. Al-Ghamdi and Mr. Al-Ghamdi’s pretrial detention for over 15 months without an
individualized judicial determination of its lawfulness undermined their presumption of
innocence as guaranteed under article 11 (1) of the Universal Declaration of Human Rights
and principle 36 (1) of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. The time during which Ms. Al-Ghamdi and Mr. Al-
Ghamdi were deprived of their liberty before being brought before a judge is a violation of
their right to be tried without undue delay, guaranteed under articles 10 and 11 (1) of the
Universal Declaration of Human Rights and principle 38 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
84.
In its submission, the source further alleges that Ms. Al-Ghamdi and Mr. Al-Ghamdi’s
case was tried in a closed trial, to which members of the public were denied access. In
particular, the source provides evidence that Ms. Al-Ghamdi and Mr. Al-Ghamdi’s family
only became aware that a trial had taken place and that they had been given lengthy prison
sentences after they had been allowed to visit them in Damman prison. The Working Group
notes that the Government did not specifically deny holding a closed trial for this case, nor
did it provide justification as to why a closed trial was necessary and proportionate.
85.
The Working Group refers to its jurisprudence and reiterates that a trial should only
be closed in exceptional circumstances and the judgment, including the essential findings,
evidence and legal reasoning must be made public.11 In the absence of evidence to the
contrary, the Working Group finds that the Government’s failure to justify the closed trial of
Ms. Al-Ghamdi and Mr. Al-Ghamdi contravenes articles 10 and 11 (1) of the Universal
Declaration of Human Rights and principle 36 (1) of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment.
86.
The source alleges that, from the first year of Ms. Al-Ghamdi and Mr. Al-Ghamdi’s
detention in Dhahban prison, the family contacted several lawyers, but all refused to take the
case because of its political nature and for fear of reprisals. Immediately following their
transfer to Dammam prison, a family member managed to secure the services of a lawyer in
preparation for a possible trial. The lawyer appointed by the family tried to consult about the
criminal proceedings and asked to visit his clients in prison, but to no avail. In reaction to
pressure put upon him, the lawyer decided to withdraw from the case.
87.
The Government submits that Ms. Al-Ghamdi and Mr. Al-Ghamdi requested the
appointment of a number of legal representatives to defend them in this case, and their request
was granted.
88.
However, the Working Group notes that the Government failed to address the
allegations that the family was unable to engage legal representatives owing to fear of
reprisals.
89.
All circumstances taken into account, the Working Group considers that the
Government failed at all times during their detention to respect Ms. Al-Ghamdi and Mr. Al-
Ghamdi’s right to legal assistance, which is inherent in the right to liberty and security of
person, and the right to a fair and public hearing by a competent, independent and impartial
tribunal established by law, in accordance with articles 3, 9, 10 and 11 of the Universal
Declaration of Human Rights as well as principles 15, 17 and 18 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment.
90.
The Working Group recalls that persons deprived of their liberty have the right to
legal assistance by counsel of their choice, at any time during their detention, including
11 Opinion No. 18/2022, paras. 72 and 73.
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immediately after apprehension, and they must be promptly informed of this right upon
apprehension.12 This right entitles persons deprived of liberty to be accorded adequate time
and facilities to prepare their defence, including through the disclosure of information. 13
Furthermore, legal counsel should be able to carry out their functions effectively and
independently, free from fear of reprisal, interference, intimidation, hindrance or
harassment.14 By contrast, the family of Ms. Al-Ghamdi and Mr. Al-Ghamdi struggled to
secure legal representation for them because the lawyers contacted were afraid of reprisals.
91.
The Working Group considers that these violations substantially undermined and
compromised Ms. Al-Ghamdi and Mr. Al-Ghamdi’s capacity to defend themselves in the
judicial proceedings. The present case is another example of legal representation being
denied or limited for individuals facing serious charges in Saudi Arabia, which suggests that
there is a systemic failure to provide access to counsel during criminal proceedings in the
country.15
92.
The source alleges that both Ms. Al-Ghamdi and Mr. Al-Ghamdi claimed that they
were tortured in front of each other. They were allegedly severely beaten, punched and
kicked, in particular in the face, and both had cigarettes put out on their skin. In its response,
the Government did not specifically deny the occurrence of these acts except to state in
general terms that torture, in all its forms, is prohibited under domestic law. In these
circumstances, the Working Group considers that the source has presented a credible prima
facie case that Ms. Al-Ghamdi and Mr. Al-Ghamdi were subjected to torture and ill-treatment
in detention. That alleged conduct is contrary to article 5 of the Universal Declaration of
Human Rights. The Working Group recalls that, according to the Committee against
Torture,16 the right to freedom from torture and other ill-treatment or punishment is absolute
and applies in all circumstances; it may never be restricted, including in times of war or under
a state of emergency. No exceptional circumstances whatsoever, including threats of
terrorism or other violent crime, may be invoked to justify torture or other ill-treatment.
93.
The Working Group has consistently maintained that, when it is not possible for a
person who is subjected to torture or other forms of ill-treatment or punishment to prepare an
adequate defence for a trial at which the equality of both parties before the judicial
proceedings is respected, this amounts to a fair trial violation.17 The Working Group notes
that torture or ill-treatment of detainees not only is a grave violation of human rights, but also
seriously undermines the fundamental principles of a fair trial as it can compromise a
person’s ability to defend himself or herself, especially in the light of the right not to be
compelled to testify against oneself or to confess guilt.18 Given the serious allegations of
torture and ill-treatment, the Working Group refers the present case to the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment, for appropriate
action.
94.
For the aforementioned reasons, the Working Group concludes that the violations of
the right to a fair trial are of such gravity as to render the detention of Ms. Al-Ghamdi and
Mr. Al-Ghamdi arbitrary under category III.
Category V
95.
The source alleges that Ms. Al-Ghamdi and Mr. Al-Ghamdi’s deprivation of liberty
is based on the political and human rights activity of their family member who is living
abroad. The latter is a political and human rights activist who was a target of the
Government’s suppression on dissent. After being threatened with arrest and death, he left
12 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, principle 9, para. 12.
13 Ibid., principle 9, para. 14.
14 Ibid., principle 9, para. 15; see also A/HRC/45/16, paras. 50–55; and opinions No. 29/2017, No.
32/2017, No. 34/2017, No. 36/2017, No. 70/2017 and No. 66/2019.
15 Opinions No. 22/2019, No. 26/2019, No. 56/2019, No. 71/2019, No. 33/2020, No. 86/2020, No.
92/2020 and No. 34/2021.
16 Committee against Torture, general comment No. 4 (2017), para. 8.
17 Opinions No. 33/2019, para. 42; and No. 34/2021, para. 87.
18 Opinions No. 22/2019, para. 78; No. 26/2019, para. 104; and No. 56/2019, para. 88.
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13
Saudi Arabia and was granted political asylum abroad. While abroad, he continues to
publicize his peaceful activism and campaigns for human rights and political reform in Saudi
Arabia. According to the source, Ms. Al-Ghamdi and Mr. Al-Ghamdi’s deprivation of liberty
is a reprisal for the family member’s activities abroad, and is also aimed at blackmailing and
silencing him. The Government denies that Ms. Al-Ghamdi and Mr. Al-Ghamdi’s arrest and
detention were reprisals for the activities of the family member living abroad, but argues that
their arrest and detention were based on charges for offences that they had committed.
96.
The Working Group considers that Ms. Al-Ghamdi and Mr. Al-Ghamdi were deprived
of their liberty as a result of their family member’s activities abroad, which include speaking
out against the Government. The Working Group reached this conclusion by taking into
account the source’s allegations – which were not addressed by the Government – that at the
same time as Ms. Al-Ghamdi and Mr. Al-Ghamdi were arrested, another family member was
also arrested and coerced into recording a video in which he denounced his relative living
abroad and declared that his family had no ties with him, in exchange for Ms. Al-Ghamdi
and Mr. Al-Ghamdi’s freedom. However, although the video was posted by the intelligence
services on social media (Facebook and Twitter), Ms. Al-Ghamdi and Mr. Al-Ghamdi were
not released. Moreover, four days after their arrest, an agent of the Mabahith contacted
another family member and allegedly indicated that, if anyone in their family tried to contact
the relative who was living abroad, Ms. Al-Ghamdi would be sentenced and executed. These
occurrences do not appear to be coincidental, but rather indicate that Ms. Al-Ghamdi and Mr.
Al-Ghamdi were deprived of their liberty and convicted in retribution for their relative’s
exercise of the right to freedom of opinion and expression abroad.
97.
The Working Group considers that Ms. Al-Ghamdi and Mr. Al-Ghamdi were detained
on a discriminatory basis, namely, birth and family ties, and that their arrest and detention
were reprisal for their relative’s activism abroad. This appears to be a case of guilt by
association.19 The Working Group reaffirms that no one should be deprived of their liberty
for the crimes, real or not, committed by a family member by birth or marriage, in a free,
democratic society.20 The Working Group thus finds that Ms. Al-Ghamdi and Mr. Al-Ghamdi
were deprived of their liberty in a discriminatory manner, contrary to articles 2 and 7 of the
Universal Declaration of Human Rights, and considers their detention arbitrary under
category V.
Disposition
98.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Aïda al-Ghamdi and Adel al-Ghamdi, being in
contravention of articles 2, 3, 5, 6, 7, 8, 9, 10 and 11 of the Universal Declaration of
Human Rights, is arbitrary and falls within categories I, III and V.
99.
The Working Group requests the Government of Saudi Arabia to take the steps
necessary to remedy the situation of Ms. Al-Ghamdi and Mr. Al-Ghamdi 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 recommends that the
Government ratify the International Covenant on Civil and Political Rights and the
International Convention for the Protection of All Persons from Enforced Disappearance.
100.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Al-Ghamdi and Mr. Al-Ghamdi
immediately and accord them an enforceable right to compensation and other reparations, in
accordance with international law.
101.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms. Al-
Ghamdi and Mr. Al-Ghamdi and to take appropriate measures against those responsible for
the violation of their rights.
19 Opinions No. 33/2017, para. 98; No. 83/2017, paras. 87 and 88; and No. 65/2019, para. 85. See also
opinions No. 34/2013, No. 35/2013, No. 36/2013 and No. 1/2017, para. 59.
20 Opinion No. 65/2019, para. 83.
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102.
The Working Group requests the Government to revise its laws, particularly the
Counter-terrorism and Financing of Terrorism Act, 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.
103.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, for appropriate action.
104.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
105.
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 Ms. Al-Ghamdi and Mr. Al-Ghamdi have been unconditionally
released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Al-Ghamdi
and Mr. Al-Ghamdi;
(c)
Whether an investigation has been conducted into the violation of Ms. Al-
Ghamdi and Mr. Al-Ghamdi’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.
106.
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.
107.
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.
108.
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.21
[Adopted on 29 March 2023]
21 Human Rights Council resolution 51/8, paras. 6 and 9.