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.23-11034 (E) 190623 190623
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. 27/2023 concerning Salma bint Sami bin Abdulmohsen al-Shehab
and Nourah bin Saeed al-Qahtani (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 15 December 2022 the Working Group
transmitted to the Government of Saudi Arabia a communication concerning Salma bint Sami
bin Abdulmohsen al-Shehab and Nourah bin Saeed al-Qahtani. The Government replied to
the communication on 10 February 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/2023/27
General Assembly
Distr.: General
19 June 2023
Original: English
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Submissions
Communication from the source
4.
Salma bint Sami bin Abdulmohsen al-Shehab is 34 years old. She is a national of
Saudi Arabia and a PhD student at the medical school of the University of Leeds, United
Kingdom of Great Britain and Northern Ireland. Ms. Nourah bin Saeed al-Qahtani is 47 years
old and a national of Saudi Arabia.
5.
According to the source, Ms. Al-Shehab is also a women’s rights advocate and
member of the Shia Muslim minority in Saudi Arabia. On her Twitter account, she has
peacefully defended women’s rights, called for the freedom of wrongfully detained human
rights activists in Saudi Arabia and supported freedom for Palestine. Her Twitter account
includes the following phrase and hashtags in the biography line: “Life is belief and struggle”,
“#Quds_is_Arabic”, “#Stop_Killing_Women” and “#Freedom_for_prisoners_of_opinion”.
She has frequently reposted the tweets of a Saudi woman activist protesting against Loujain
Alhathloul’s harsh prison sentence and travel ban.2 She has also posted tweets against the
oppression of Arab women and in support of intersectional feminism. On 30 August 2019,
she tweeted: “I reject injustice, and support the oppressed … Freedom for prisoners of
conscience and for all the oppressed in the world.” On 20 December 2020, she tweeted:
“Freedom for the inmates of patriarchy, shame on the jailer!”
6.
On 15 January 2021, while on holiday in Saudi Arabia, Ms. Al-Shehab was called in
for “questioning” at the Presidency of State Security facility in Dammam, without a lawyer
being present. The officers of the Presidency of State Security questioned Ms. Al-Shehab
about having retweeted in support of Ms. Alhathloul and about having watched a dissident’s
YouTube videos. Five officers tried to coerce her into stating support for the Muslim
Brotherhood, a banned group in Saudi Arabia, by threatening her with violence, insulting her
family members and verbally harassing her about being a Shia Muslim. After the questioning
had concluded, they did not permit Ms. Al-Shehab to leave and confined her in a jail run by
the Presidency of State Security in Dammam. The officers neither presented Ms. Al-Shehab
with an arrest warrant nor informed her of the reason for her arrest or any charges against
her. Officers of the Presidency of State Security told members of Ms. Al-Shehab’s family not
to worry, promising them that she would be released soon. Later, the officers of the
Presidency of State Security searched Ms. Al-Shehab’s home in Saudi Arabia without a
search warrant.
7.
For the first 13 days of her detention, Ms. Al-Shehab was denied any communication
with the outside world and was kept separately from other detainees.3 After this period, she
was allowed to have phone calls and meet with her family members from behind a glass wall.
Despite Ms. Al-Shehab’s requests, she was not provided with a lawyer, informed of the
charges or presented before a judge. Officers took advantage of Ms. Al-Shehab’s depression
by interrogating her in the middle of the night, shortly after she had taken her antidepressant
and sleeping pills. The officers told her that nobody outside was asking about her and nobody
cared about her. They continued to harass Ms. Al-Shehab in a similar manner to how she was
treated during her initial questioning. She was regularly transferred between Dammam and
Riyadh for interrogation and was not always allowed to inform her family about the transfers.
8.
In October 2021, 10 months after being arrested, Ms. Al-Shehab was charged with a
number of terrorist offences under the Law on Combating Crimes of Terrorism and their
Financing (the “Anti-Terrorism Law”). A government lawyer was appointed to Ms. Al-
Shehab, but the lawyer failed to communicate with her. Ms. Al-Shehab’s family hired a
private lawyer with whom she was to prepare for the trial. However, all their conversations
were monitored, with officers able to see and hear them.
9.
In October 2021, the trial before the Specialized Criminal Court began in closed court.
Ms. Al-Shehab’s government-appointed lawyer appeared in court, but Ms. Al-Shehab chose
to proceed with her privately hired lawyer. The only evidence presented against Ms. Al-
2 Opinion No. 33/2020, para. 100.
3 According to documents submitted to the Specialized Criminal Court of Appeal, Ms. Al-Shehab
stated that she had been held in solitary confinement for 285 days.
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3
Shehab consisted of her Twitter activity – the activists she was following, and her retweets
supporting them – and her statements during interrogation. Ms. Al-Shehab requested an
opportunity to tell the judge in private about the threats of violence and verbal harassment
that she had been subjected while being interrogated, so that Ms. Al-Shehab’s family member
would not hear. However, the judge rejected the request and, as a result, Ms. Al-Shehab was
not able to tell the Court what she had suffered during the initial phase of detention. At times,
the dates of the hearings were changed at such short notice that Ms. Al-Shehab’s legal team
was unable to properly prepare.
10.
On 14 March 2022, the Specialized Criminal Court held that Ms. Al-Shehab was
guilty of “giving a wider platform for terrorist messaging by spreading ‘false information’
that threatens national security and public order and endangers State and/or national stability”
(in accordance with article 43 of the Anti-Terrorism Law). She was sentenced to six years in
prison, and the judge ordered her phone to be confiscated and her Twitter account to be shut
down permanently.
11.
Both parties appealed the decision of the court of first instance. In his appeal, the
Public Prosecutor demanded a maximum prison term in accordance with the charges and the
cancellation of the SIM card of Ms. Al-Shehab’s phone. In her appeal, Ms. Al-Shehab argued
that the conviction was based solely on her Twitter activity, denying any intention to
destabilize the security of the State. She stated that she had been held in solitary confinement
for 285 days before being brought before a judge, in violation of article 114 of the Code of
Criminal Procedure and requested that the Court consider her need to care for her two
children and sick mother. Before the sentencing on appeal, Ms. Al-Shehab was called before
the Specialized Criminal Court of Appeal in closed court, only to be asked “if she was
remorseful”, to which she responded affirmatively.
12.
On 19 August 2022, the Specialized Criminal Court of Appeal accepted the Public
Prosecutor’s appeal and convicted Ms. Al-Shehab of “supporting those who seek to disrupt
public order and destabilize security and the stability of the State” and of publishing tweets
that “disturb public order and destabilize the security of society and the stability of the State”.
The Specialized Criminal Court of Appeal sentenced Ms. Al-Shehab to 34 years in prison,
followed by a travel ban of the same length (on the basis of articles 34, 38, 43 and 44 of the
Anti-Terrorism Law and article 6 of the Anti-Cybercrime Law), and a discretionary 5-year
prison term added by the presiding judge, based on the “charges levelled against her that do
not have a set punishment”. The sentence also includes the closure of her Twitter account
and the deactivation of her phone number. Ms. Al-Shehab’s lawyer was barred from
attending the sentencing hearing.
13.
According to the source, Ms. Al-Shehab’s legal team will appeal the sentence before
the Supreme Court. They have also filed a request for clemency and a complaint to the Human
Rights Commission of Saudi Arabia. Ms. Al-Shehab is currently being held in a prison run
by the Presidency of State Security in Dammam, suffering from poor health and depression.
14.
Her sentence has been condemned by the Office of the United Nations High
Commissioner for Human Rights (OHCHR),4 and several non-governmental organizations,
among others. Since Ms. Al-Shehab’s detention, several other Saudi women’s rights activists
have been detained because of their Twitter activity.
15.
Before her arrest, Ms. Al-Qahtani regularly shared her views on social media on Saudi
political affairs.
16.
The source reports that Ms. Al-Qahtani was arrested by officers of the Presidency of
State Security on 4 July 2021. Prior to her arrest, Ms. Al-Qahtani had been active on Twitter
through two anonymous accounts, through which she advocated for human rights in Saudi
Arabia, called for the release of political detainees and criticized human rights abuses
committed by the Saudi authorities.
17.
On 16 February 2022, Ms. Al-Qahtani was sentenced to 13 years in prison, with half
of the sentence suspended, and to a 13-year travel ban by the Specialized Criminal Court, in
4 OHCHR, “Comment by UN Human Rights Office spokesperson Liz Throssell after Saudi woman
jailed for 34 years”, 19 August 2022.
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accordance with articles 43, 46 and 53 (1) of the Anti-Terrorism Law. The Court also ordered,
in accordance with article 58 of the Anti-Terrorism Law, that her phone be confiscated; that
both of her Twitter accounts be shut down; and that her phone’s SIM card be confiscated.
Furthermore, the Court ordered that a book in her possession, authored by a detained Saudi
scholar and prisoner of conscience, be confiscated.
18.
On 10 March 2022, the Public Prosecutor filed an appeal, followed on 17 March 2022
by an appeal filed by Ms. Al-Qahtani’s lawyer. The Public Prosecutor argued that Ms. Al-
Qahtani should also be sentenced on the basis of the prison sentences provided for in article
6 of the Anti-Cybercrime Law and articles 30, 34, 35, 38, 43, 44 and 57 of the Anti-Terrorism
Law.
19.
The Public Prosecutor also argued that Ms. Al-Qahtani should be sentenced to an
additional discretionary sentence for “insulting the symbols of the State and calling for the
release of those detained in State security cases, in addition to possessing a banned book”.
Moreover, the Public Prosecutor called upon the Court to cancel the suspension of half of
Ms. Al-Qahtani’s sentence and to sentence her to the maximum prison term.
20.
In the appeal, Ms. Al-Qahtani’s lawyer called for the Court to drop all charges against
her since her actions did not fall under the jurisdiction of the Specialized Criminal Court. The
lawyer stated that most of the charges brought against Ms. Al-Qahtani related to her activity
on Twitter. The lawyer asserted that Ms. Al-Qahtani, through her use of Twitter, had not
taken any actions with intent to commit a terrorist act. The lawyer maintained that there was
no evidence provided to the Court to indicate that Ms. Al-Qahtani had communicated with
any terrorist entity, joined a terrorist organization, adopted any terrorist beliefs, incited people
to join a terrorist entity or provided any aid to those seeking to threaten public order in Saudi
Arabia. The lawyer also maintained that Ms. Al-Qahtani did not have a sufficient number of
followers on Twitter to allow her to have any effect on society.
21.
Ms. Al-Qahtani’s lawyer added that the confiscated book that belonged to Ms. Al-
Qahtani was not a political book and that she did not know that it had been banned in Saudi
Arabia. The lawyer affirmed that the book was sold locally in Saudi Arabia and was available
on the websites of Saudi booksellers.
22.
On 9 August 2022, the Specialized Criminal Court of Appeal sentenced Ms. Al-
Qahtani to 45 years in prison on the basis of the Anti-Cybercrime Law and the Anti-Terrorism
Law.
23.
The judges of the Specialized Criminal Court of Appeal upheld the initial prison
sentence of Ms. Al-Qahtani and the order to shut down her Twitter accounts and confiscate
her phone and SIM card, in accordance with article 58 of the Anti-Terrorism Law.
24.
The Specialized Criminal Court of Appeal found her guilty of “preparing, sending and
storing information, through the Internet, seeking to harm public order” and “seeking to
disturb the social fabric, national unity, social cohesion and basic laws”, thereby sentencing
her to a total of 45 years in prison (in accordance with articles 30, 34, 35, 38, 43, 44 and 46
of the Anti-Terrorism Law and article 6 of the Anti-Cybercrime Law). The Specialized
Criminal Court of Appeal also sentenced Ms. Al-Qahtani to a 45-year travel ban (in
accordance with article 53 of the Anti-Terrorism Law).
Analysis of violations
i.
Category I
25.
The source submits that, in the case of Ms. Al-Shehab, officers of the Presidency of
State Security did not invoke any legal basis at the time of her arrest on 15 January 2021.
Ms. Al-Shehab was arrested without a warrant and without being informed of the reasons for
her arrest. She was not promptly informed of the charges against her, being informed of them
only in October 2021, some 10 months later. Therefore, she remained in custody for 10
months without any legal basis. Those failures contravene articles 3 and 9 of the Universal
Declaration of Human Rights and principles 2, 4 and 10 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
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5
26.
The source recalls that, after Ms. Al-Shehab was arrested on 15 January 2021, she was
held incommunicado for 13 days, not allowed to contact a lawyer or correspond with her
family. After that period, she was not always allowed to inform her family about her transfers
from Dammam to Riyadh and back. She was only granted access to a lawyer in October 2021.
Those violations also undermine Ms. Al-Shehab’s right to habeas corpus. By not allowing
Ms. Al-Shehab to communicate with her family during the first 13 days of her pretrial
detention and to regularly inform them of her transfers and by not allowing her access to a
lawyer until October 2021, she was placed outside the protection of the law, contrary to
article 6 of the Universal Declaration of Human Rights and principles 15, 16 (1) and 19 of
the Body of Principles.
27.
The source reports that, after Ms. Al-Shehab’s arrest on 15 January 2021, she was not
presented before a judicial authority and was not given the opportunity to challenge her
detention at any time during her pretrial detention. Therefore, her right to a prompt
appearance before a judicial authority and her right to challenge her detention were violated
in contravention of principles 11 (1), 32 (1) and 37 of the Body of Principles.
28.
Ms. Al-Shehab and Ms. Al-Qahtani were prosecuted and sentenced on the basis of
several articles contained in the Anti-Terrorism Law and the Anti-Cybercrime Law. The
source submits that the vague and overly broad provisions used to prosecute them lack legal
certainty and make it impossible to invoke any legal basis to justify their deprivation of
liberty.
29.
The source notes that their sentences mostly rely on provisions of the Anti-Terrorism
Law, which contains a definition of a “terrorist crime” in article 1 that is, according to the
Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism5 and the Committee against Torture,6 broad and vague
and enables the criminalization of a wide spectrum of acts of peaceful expression and
opinion.
30.
According to the source, the same concerns apply to the other provisions of the Anti-
Terrorism Law invoked against Ms. Al-Shehab and Ms. Al-Qahtani that stem from the
imprecise definition enshrined in article 1 and the harsh penalties set out in articles 30, 34,
35, 38, 43 and 44 thereof. Those provisions target human rights defenders by designating
criticism of the King and the Crown Prince that bring religion or justice into disrepute as
terrorism and criminalizing free speech by containing disproportionate sentences.
31.
Furthermore, the source notes that the respective prison sentences of Ms. Al-Shehab
and Ms. Al-Qahtani also include a one-year prison sentence based on article 6 of the Anti-
Cybercrime Law.
32.
According to the source, the provisions contained in both the Anti-Terrorism Law and
the Anti-Cybercrime Law allow the criminalization of peaceful expression (see also below
under category II), enable arbitrary interpretation and make it difficult for individuals to
determine how to act in order to comply with the law.
33.
The source recalls that the principle of legality requires criminal courts to ensure that
they do not punish acts that are not punishable under the laws cited in the charges. However,
the presiding judge of the Specialized Criminal Court of Appeal added a discretionary five-
year prison term for Ms. Al-Shehab, on the basis that the charges levelled against her did not
have a set punishment, and a one-year prison term for Ms. Al-Qahtani. By applying the vague
and overly broad provisions and by adding the discretionary one and five-year prison terms,
the authorities violated the principle of legality, enshrined in article 11 (2) of the Universal
Declaration of Human Rights, thus rendering the arrest and detention of Ms. Al-Shehab and
Ms. Al-Qahtani baseless and arbitrary under category I.
5 See communication SAU 12/2020, p. 6, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25726.
6 CAT/C/SAU/CO/2, para. 16.
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ii.
Category II
34.
The source submits that the detention of Ms. Al-Shehab and Ms. Al-Qahtani is
arbitrary because it directly resulted from the exercise of their right to freedom of expression.
Furthermore, because of their status as human rights defenders, the circumstances
surrounding their detention should be afforded a “particularly intense review”. 7 Ms. Al-
Shehab was arrested and detained for her retweets defending women’s rights and freedom of
political opinion in Saudi Arabia, with the sole evidence presented against her consisting of
her Twitter activity and the statements that she made during interrogation. Similarly, Ms. Al-
Qahtani was convicted on charges that have a direct connection to her tweets on human rights
issues. She was also convicted of being in possession of a banned book, written by Salman
al-Odah, who has been in prison since 2017 after he called for peace on Twitter following
the Saudi-led blockade of Qatar. The verdict issued by the Specialized Criminal Court of
Appeal reveals the connection between the conviction and Ms. Al-Qahtani’s right to freedom
of expression as the judges commented on the content that she had shared on Twitter and the
accounts she followed on YouTube.
35.
Furthermore, the source affirms that the sentences imposed on Ms. Al-Shehab and
Ms. Al-Qahtani are not commensurate with the nature of the alleged offences. The source
recalls that deprivation of liberty must be “in accordance with the applicable law and
procedure” and be “proportional to the aim sought, reasonable and necessary”.8 In addition,
in accordance with article 29 (2) of the Universal Declaration of Human Rights, restrictions
placed on the freedom of expression by way of deprivation of liberty can only be justified
when the deprivation of liberty has a legal basis in national law, does not contradict
international law and is necessary to ensure respect of the rights or reputations of others, or
for the protection of national security, public order, public health or morals, and is
proportionate to the pursued legitimate aims.9 The source asserts that that criteria does not
appear to have been met in the present cases.
36.
According to the source, the present cases are more examples of Saudi authorities
weaponizing the Anti-Terrorism Law and the Anti-Cybercrime Law to target, intimidate and
retaliate against human rights defenders and dissidents. The present cases fall within a
systematic pattern of denying Saudi human rights defenders their freedom of expression.10
37.
The source recalls that Saudi Arabia has an extensive record of alleged espionage and
cybersurveillance to spy on dissidents and systematically repress critics of the regime. The
source affirms that there is a strong probability that the Twitter accounts of Ms. Al-Shehab
and Ms. Al-Qahtani were discovered through unlawful and intrusive government
surveillance, particularly in the light of article 6 of the Anti-Terrorism Law, which grants the
Head of the Presidency of State Security the powers to monitor individuals’ communications
without judicial oversight, and the fact that the judgments reference the phone numbers of
Ms. Al-Shehab and Ms. Al-Qahtani multiple times.
38.
The source thus concludes that the deprivation of liberty of Ms. Al-Shehab and
Ms. Al-Qahtani resulted from the peaceful exercise of their right to freedom of expression
and violated article 19 of the Universal Declaration of Human Rights, giving their detention
an arbitrary character under category II.
iii.
Category III
39.
As the deprivation of liberty of the two individuals directly resulted from the exercise
of their right to freedom of expression, the source emphasizes that no trial should have taken
place.
40.
The source submits that Ms. Al-Shehab was not initially given access to a lawyer and
was interrogated without one being present during her pretrial detention. She was only given
access to a lawyer in October 2021 and their conversations could be heard by law
7 Opinion No. 62/2012, para. 39.
8 Deliberation No. 9 concerning the definition and scope of arbitrary deprivation of liberty under
customary international law (A/HRC/22/44), para. 61.
9 E/CN.4/2006/7, para. 43.
10 Opinions No. 10/2018, paras. 64–69; No. 71/2019, paras. 79–83; and No. 33/2020, paras. 80–83.
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enforcement officers. At times, the dates of the hearings were changed at such short notice
that Ms. Al-Shehab’s legal team was unable to properly prepare. Those failures, along with
the lack of prompt information about the charges against her, deprived Ms. Al-Shehab of
adequate time and facilities to prepare for her defence. The State thus violated article 11 (1)
of the Universal Declaration of Human Rights, principles 15, 17 and 18 of the Body of
Principles, principles 1, 5, 7 and 8 of the Principles on the Role of Lawyers and principle 9
and guideline 8 of the United Nations Basic Principles and Guidelines on Remedies and
Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before
a Court.
41.
The source argues that Ms. Al-Shehab was detained without charge for 10 months
before her trial began in October 2021. During the trial, the only evidence presented against
her was her Twitter activity and her statements made during interrogation, demonstrating that
no thorough investigation had been carried out. The delay was not attributable to Ms. Al-
Shehab, who was detained without access to a lawyer. By depriving Ms. Al-Shehab of her
right to be tried within a reasonable time, the State contravened principles 38 and 39 of the
Body of Principles.
42.
The source submits that Ms. Al-Shehab’s 13-day incommunicado detention and
solitary confinement and the threats, insults and harassment that she endured during her
interrogation constitute cruel, inhuman or degrading treatment, which impaired her ability to
prepare for her defence. In addition, she was interrogated by using improper and inhuman
methods, such as trying to make her incriminate herself, and interrogating her in the middle
of the night shortly after she had taken her medication. Therefore, the State contravened
article 5 of the Universal Declaration of Human Rights, principles 1, 6, 8 and 21 of the Body
of Principles and articles 2, 13 and 16 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
43.
According to the source, all the trial hearings in the cases of Ms. Al-Shehab and Ms.
Al-Qahtani were held before the Specialized Criminal Court, a court established in 2008 to
try cases of terrorism. Reportedly, since its establishment, the Specialized Criminal Court has
suffered from undue influence by the executive, rendering it a tool of repression used to
prosecute peaceful critics on trumped-up terrorism charges. Its judges are appointed by the
Supreme Judicial Council. Under the Law of the Judiciary of 2007, the Supreme Judicial
Council is comprised of a chair and 10 members – 7 of whom are directly appointed by the
King – in addition to the Director of the Bureau of Investigation and Public Prosecution,
which was replaced by the Public Prosecution Service in 2017. Because of the undue
influence of the King and the Public Prosecutor over the Supreme Judicial Council, the
Specialized Criminal Court is not an impartial or independent body.
44.
The source submits that the recent appointment, by royal decree, of at least 10
detectives and prosecutors to serve as judges at the Specialized Criminal Court further
illustrates this lack of independence. Moreover, the source recalls that the trials of Ms. Al-
Shehab at the Specialized Criminal Court and the Specialized Criminal Court of Appeal were
held in closed court with members of the public denied access. The officials did not justify
why closed trials were necessary and proportionate in her case. Furthermore, there was no
mechanism to observe or review the basis for the restrictions.
45.
In view of the above, the source argues that the trials of Ms. Al-Shehab and Ms. Al-
Qahtani before the Specialized Criminal Court and the Specialized Criminal Court of Appeal
were not before independent courts, in violation of article 10 of the Universal Declaration of
Human Rights.
46.
Moreover, the State’s failure to try Ms. Al-Shehab in a public trial contravenes article
10 of the Universal Declaration of Human Rights and principle 36 (1) of the Body of
Principles.
47.
The source recalls that the right to a fair trial extends to how punishments are
determined and which punishments may be imposed. The source argues that Ms. Al-Shehab
and Ms. Al-Qahtani received disproportionately severe penalties; it can be expected that
Ms. Al-Shehab will have served her full sentence by the time she reaches the age of 68 and
in the case of Ms. Al-Qahtani the age of 90. They were also found guilty of crimes, such as
“spread[ing] lies through tweets”, that should not be criminalized in the first place.
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48.
According to the source, Ms. Al-Shehab was not tried within a reasonable time, was
not informed of the reason for the arrest at the time of the arrest, was not promptly informed
of the charges, was held incommunicado and in solitary confinement, was not provided with
access to a lawyer and was threatened and harassed to obtain incriminating statements.
Ms. Al-Shehab and Ms. Al-Qahtani were tried by courts that were not independent and were
convicted based on vague or non-existent provisions. In addition, Ms. Al-Shehab’s hearings
were held in secret. Their right to be presumed innocent, enshrined in article 11 (1) of the
Universal Declaration of Human Rights and principle 36 (1) of the Body of Principles, was
violated.
49.
The source thus concludes that their detention is arbitrary under category III.
iv.
Category V
50.
According to the source, the arrests, prosecution and treatment of Ms. Al-Shehab and
Ms. Al-Qahtani are the direct result of their political opinions and status as human rights
defenders. Their views and beliefs are clearly at the centre of this case and the authorities
have displayed an attitude towards them that can only be characterized as discriminatory.
51.
The source notes that Ms. Al-Shehab’s calls for gender equality and her gender played
a pivotal role in her treatment and deprivation of liberty. This is supported by the prevalent
discrimination against women in Saudi Arabia, including the growing number of detentions
of women’s rights activists.11 In addition, considering that Ms. Al-Shehab was harassed
during her interrogations for being a Shia Muslim and that Shia Muslims are regularly
persecuted in Saudi Arabia, she was further discriminated against based on her religion.12
52.
The source concludes that the detention and treatment of Ms. Al-Shehab and Ms. Al-
Qahtani fall within a pattern of discrimination against human rights activists, women and
religious minorities and is contrary to articles 2 and 7 of the Universal Declaration of Human
Rights and principle 5 (1) of the Body of Principles, rendering their deprivation of liberty
arbitrary under category V.
Response from the Government
53.
On 15 December 2022, the Working Group transmitted the allegations from the source
to the Government under its regular communications procedure, requesting a reply by 13
February 2023. Moreover, the Working Group called upon the Government of Saudi Arabia
to ensure the physical and mental integrity of Ms. Al-Shehab and Ms. Al-Qahtani.
54.
On 10 February 2023, the Government submitted its reply, in which it stated that it
was cooperating with all United Nations human rights mechanisms and had responded to all
queries and requests. The Government states that the claims presented in the communication
are unfounded and based solely on information provided by the source and without
supporting evidence. It adds that it has investigated the allegations with a view to clarifying
all the facts, in line with its cooperation with international human rights mechanisms.
55.
The Government submits that Ms. Al-Shehab was arrested pursuant to an arrest
warrant issued by the competent authority in accordance with articles 2 and 5 of the Anti-
Terrorism Law. It submits that she was not detained incommunicado, but rather at a known
location, the General Investigation Prison in Dammam. Ms. Al-Qahtani was also arrested
pursuant to an arrest warrant issued by the competent authority in accordance with articles 2
and 5 of the Anti-Terrorism Law. Both individuals’ warrants were extended and they were
informed of the reasons for their arrest in accordance with national law.
56.
Ms. Al-Shehab and Ms. Al-Qahtani were informed of their legal rights and confirmed,
in writing, that they had the right to access legal representation. They were also appraised of
their right to be informed of the charges against them, in accordance with article 101 (1) of
the Code of Criminal Procedure. The Public Prosecution Service then concluded that the
evidence was sufficient to charge the defendants under article 126 of the Code.
11 Opinion No. 33/2020, paras. 95–97.
12 Opinion No. 26/2019, paras. 108–110.
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9
57.
The Government submits that national law ensures that all lawyers can perform their
professional functions without intimidation, harassment or improper interference. The
Charter of the Saudi Bar Association contains numerous provisions to support lawyers in
promoting and protecting human rights. Consistent with national law guarantees, Ms. Al-
Shehab and Ms. Al-Qahtani were informed that, if they were unable to hire their own lawyers,
they could request a court-appointed lawyer at the expense of the State. The requests of
Ms. Al-Shehab and Ms. Al-Qahtani to appoint defence lawyers were granted. Both
individuals thus exercised their right to legal representation.
58.
The Government submits that the cases were examined by an independent and
impartial court (the Specialized Criminal Court), which was established by a decree of the
Supreme Judicial Council and which follows judicial procedures set out under the statutes of
the judiciary, the Code of Criminal Procedure and the Code of Sharia Procedure. Judges are
appointed pursuant to a decree of the Supreme Judicial Council that has been endorsed by
royal order. Judges may only be appointed if they have obtained certain credentials and they
are subject to certain conditions.
59.
Ms. Al-Shehab and Ms. Al-Qahtani were informed of their right to challenge the
judgment in accordance with article 192 (1) of the Code of Criminal Procedure. Both the
Public Prosecutor and the defendants appealed. After the judgment was upheld by the court
of first instance, the case was referred to the appellate court. In accordance with the law, the
appellate court sentenced Ms. Al-Shehab to 34 years’ imprisonment and sentenced Ms. Al-
Qahtani to 45 years’ imprisonment under both the Anti-Terrorism Law and the Anti-
Cybercrime Law.
60.
The parties subsequently lodged an appeal for cassation with the Supreme Court. The
Supreme Court overturned the judgments and returned the case to the appellate court for
reconsideration by different judges, in accordance with article 202 of the Code of Criminal
Procedure. The Government notes that the case remains under judicial review.
61.
The principles of legality, necessity and proportionality are upheld in Saudi law,
meaning that national laws are formulated with sufficient precision and clarity, and
punishments are proportionate to the nature of the crime committed and necessary to protect
human rights and public order. Ms. Al-Shehab and Ms. Al-Qahtani were prosecuted in
accordance with the Anti-Terrorism Law and the Anti-Cybercrime Law, which contain no
ambiguities and were drafted with full respect for crime and punishment. National law also
guarantees human rights to all defendants subject only to restrictions consistent with relevant
international standards or sharia law.
62.
The Government submits that Ms. Al-Shehab and Ms. Al-Qahtani have been treated
in a manner that preserves their dignity and protects their rights. Both individuals have
enjoyed the right to regular visits and communications. Ms. Al-Shehab has not been subjected
to torture or ill-treatment. Furthermore, all prisons and detention facilities in Saudi Arabia
are subject to oversight and inspection by the Human Rights Commission of Saudi Arabia
and necessary measures are taken in the event of a violation of national law. Saudi Arabia is
committed to the human rights instruments to which it is a party, including the Convention
against Torture, and considers those instruments part of its national law.
63.
The crimes committed by Ms. Al-Shehab and Ms. Al-Qahtani are unrelated to
freedom of expression as they have been convicted of terrorism-related offences. In that
context, the Government draws attention to Security Council resolution No. 1566 (2004), in
which it recalled that terrorist offences could not be justified by political, philosophical,
ideological, racial, ethnic, religious or other similar considerations. The Government also
recalls the restrictions on the right to freedom of expression provided for in article 29 (2) of
the Universal Declaration of Human Rights.
64.
The Government submits that the trials of Ms. Al-Shehab and Ms. Al-Qahtani were
public, and national law upholds the presumption of innocence and a number of procedural
safeguards to ensure that due process is guaranteed. The penalties issued against Ms. Al-
Shehab and Ms. Al-Qahtani were ordered by judicial ruling, supported by evidence and
proportional to the crimes committed. Furthermore, the Government submits that all arrested
and detained persons are guaranteed the right to challenge the lawfulness of their arrest or
detention. All the proceedings in this case were based on existing national legislation, which
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is consistent with international fair trial standards and the human rights instruments to which
the country has acceded.
65.
The Government submits that all persons are entitled to the equal protection of the
law in accordance with article 47 of the Basic Law of Governance. The Government reiterates
that Ms. Al-Shehab and Ms. Al-Qahtani were arrested on charges of terrorism, therefore,
their arrests had nothing to do with their political opinions, gender or religion.
66.
All procedures related to Ms. Al-Shehab and Ms. Al-Qahtani have been shown to be
in accordance with international human rights standards and with the State’s obligations
under human rights instruments.
67.
In conclusion, the Government notes that, in cooperation with the international human
rights mechanisms, it responds to all letters, appeals and reports submitted to it. Saudi Arabia
wishes to remind the Working Group of the Code of Conduct for Special Procedure Mandate
Holders of the Human Rights Council.
Further comments from the source
68.
The response of the Government was sent to the source for further comments, which
were provided on 2 March 2023.
69.
The source notes that the State primarily recalls the applicable legislation to contest
the source’s allegations. The source argues that it is not sufficient to state that a violation
could not have taken place because national law prohibits it.
70.
The source notes that the State has not demonstrated that Ms. Al-Shehab and Ms. Al-
Qahtani were arrested on the basis of a warrant, that they were informed of the reasons for
their arrest or that their right to be promptly informed of any charges was respected.
71.
Furthermore, the Government does not provide sufficient information on its
procedures in relation to fair detention or prison oversight, the criminal offences invoked
against Ms. Al-Shehab and Ms. Al-Qahtani, safeguards against discretionary sentencing and
the undue influence of the King on the Specialized Criminal Court and the judiciary. The
Government fails to justify its use of closed trials or explain the precise nature of the threat
posed by the complainants, or the necessity and proportionality of their detention and
sentences.
72.
While the Government claims that the detentions of Ms. Al-Shehab and Ms. Al-
Qahtani are non-discriminatory, their detention resulted from the active exercise of civil and
political rights. Thus, there is a strong presumption that it constitutes a violation of
international law on the grounds of discrimination based on political or other views. Ms. Al-
Shehab advocated for women’s rights and was harassed for being a Shia Muslim, therefore,
she was discriminated against based on her gender and religion.
Discussion
73.
The Working Group thanks the source and the Government for their submissions.
74.
In determining whether the detention of Ms. Al-Shehab and Ms. Al-Qahtani 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.13 Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations.14
75.
In the present case, the source argues that the detention of the two individuals is
arbitrary under categories I, II, III and V. The Government denies these allegations. The
Working Group will proceed to examine the allegations in turn.
13 A/HRC/19/57, para. 68.
14 Ibid.
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11
Category I
76.
The source alleges that Ms. Al-Shehab was arrested without a warrant and without
immediately being informed of the reasons for her arrest. She was not promptly informed of
the charges against her, being informed of them 10 months later. The Government avers that
Ms. Al-Shehab was arrested on terrorism charges, pursuant to an arrest warrant issued by the
competent authorities under articles 2 and 5 of the Anti-Terrorism Law. She was detained at
the General Investigation Prison in Dammam and her arrest warrant was extended, as
permitted by law. The Government submits that Ms. Al-Shehab and Ms. Al-Qahtani were
informed of the reasons for their arrest and that they signed a document confirming that they
had been informed of their legal rights.
77.
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).15 The reasons for the
arrest must be provided immediately upon arrest and must include not only the general legal
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.16
78.
The Working Group considers that Ms. Al-Shehab was not arrested in flagrante
delicto, when the opportunity to obtain a warrant would not be typically available. The
Working Group notes the response from the Government that arrest warrants may have been
issued, but the Government has not indicated whether the warrant was shown to Ms. Al-
Shehab at the time of her arrest. Furthermore, as observed by the source, the Government
does not mention the specific authority that issued the arrest warrants or the date of issuance.
The Government does not specify when Ms. Al-Shehab was informed of the reasons for her
arrest and the charges against her, nor when the case was filed before the competent court or
when the prosecution was provided with a copy of the charge sheets. In the absence of that
information, the Working Group considers that the Government failed to demonstrate that
Ms. Al-Shehab was presented with the arrest warrant and informed of the reasons for her
arrest, at the time of arrest, and of the charges against her promptly, in contravention of article
9 of the Universal Declaration of Human Rights and principle 10 of the Body of Principles.
79.
The Working Group has repeatedly asserted that holding persons incommunicado
violates their right to contest the legality of their detention before a court or tribunal. Judicial
oversight of any detention is a central safeguard for personal liberty 17 and is critical in
ensuring that detention has a legitimate basis.
80.
The source alleges that, after Ms. Al-Shehab was arrested on 15 January 2021, she
was held incommunicado for 13 days, during which time she was not allowed to contact a
lawyer or correspond with her family. After this period, she was not always allowed to inform
her family about her transfers from Dammam to Riyadh and back. She was only granted
access to a lawyer in October 2021. In its response, the Government makes no reference to
incommunicado detention but states instead that, when Ms. Al-Shehab was arrested, she was
detained at the General Investigation Prison in Dammam, where her arrest warrant was
extended, as permitted by law. The Government states that Ms. Al-Shehab was entitled to
visits and contacts periodically and regularly starting from the date of her detention.
81.
The Working Group notes that the Government had custody of Ms. Al-Shehab
throughout the relevant period and should therefore be able to discern from its records the
interaction between her and the outside world. The Government should have therefore
provided in its response an indication of the visitors and persons Ms. Al-Shehab interacted
with, as well as the nature and frequency of such contact. In the absence of such specific
information, the Working Group considers that the Government failed to rebut the source’s
submission that Ms. Al-Shehab was held incommunicado for 13 days, subsequently unable
to regularly inform her family of her transfers and not allowed to have access to a lawyer
until October 2021, which placed her outside the protection of the law, contrary to article 6
15 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
16 Opinions No. 30/2017, paras. 58 and 59; No. 85/2021, para. 69; and No. 79/2022, para. 58.
17 A/HRC/30/37, para. 3; and CAT/C/VNM/CO/1, para. 24.
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of the Universal Declaration of Human Rights and principles 15, 16 (1) and 19 of the Body
of Principles.
82.
Moreover, at no point during Ms. Al-Shehab’s pretrial detention, was she able to
challenge her detention before a court and thus her right to an effective remedy under article 8
of the Universal Declaration of Human Rights was violated. Furthermore, considering the
Government’s failure to rebut the source’s claim that Ms. Al-Shehab was not brought
promptly before a judicial authority, the Working Group finds that she was not afforded the
right to bring proceedings before a court for it to decide without delay about the lawfulness
of her 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.
83.
The source submits that Ms. Al-Shehab and Ms. Al-Qahtani were prosecuted and
sentenced on the basis of several articles contained in the Anti-Terrorism Law and the Anti-
Cybercrime Law. The source submits that the provisions used to prosecute both individuals
lack legal certainty. The Government argues that the laws of Saudi Arabia are formulated
with precision and clarity and that they are published on governmental and other websites
and are subject to constant review.
84.
The Working Group has stated that vaguely and broadly worded provisions, such as
the Anti-Cybercrime Law and the 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. 18 The two former Special Rapporteurs on the
promotion and protection of human rights and fundamental freedoms while countering
terrorism expressed concern that the definition of “terrorist crime”, as contained in article 1
of the Anti-Terrorism Law, did not restrict the acts that it criminalized to violent acts. Similar
concerns were raised by the Committee against Torture.
85.
The Working Group is of the view that, by applying vague and overly broad
provisions of the Anti-Terrorism Law and the Anti-Cybercrime Law and by adding the
discretionary one and five-year prison terms to the sentences of Ms. Al-Shehab and Ms. Al-
Qahtani, the authorities violated the principle of legality, as enshrined in article 11 (2) of the
Universal Declaration of Human Rights.
86.
For the reasons set out above, the Working Group finds that the Government failed to
establish a legal basis for the arrest and detention of Ms. Al-Shehab and Ms. Al-Qahtani and
that their deprivation of liberty is arbitrary under category I.
Category II
87.
The source submits that the detention of Ms. Al-Shehab and Ms. Al-Qahtani is
arbitrary because it directly results from the exercise of their right to freedom of expression
and should be afforded a “particularly intense review because of their status as human rights
defenders”. Specifically, the two individuals were convicted on charges directly related to
using Twitter accounts, which they allegedly used as platforms for their human rights
activism.
88.
The Government avers that it respects and supports the right to freedom of opinion
and expression unless it breaches or exceeds the bounds of public order or the norms and
precepts applicable to society and its members. Those restrictions are consistent with the
relevant international standards, in particular article 29 (2) of the Universal Declaration of
Human Rights. The Government contends that there was evidence that Ms. Al-Shehab and
Ms. Al-Qahtani had committed serious terrorist crimes.
89.
The Working Group has considered a number of cases concerning deprivation of
liberty by the Government under the provisions of the Anti-Terrorism Law and the Anti-
Cybercrime Law, whereby the individuals were deprived of their liberty for online comments
expressing their political views. The Working Group has found prosecution and
18 Opinions No. 71/2019, para. 73; and No. 30/2022, para. 80.
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GE.23-11034
13
imprisonment under these laws to be arbitrary when they result from the legitimate exercise
of fundamental human rights.19
90.
The Working Group recalls that holding and expressing opinions, including those that
are critical of, or not in line with, government policy, are protected by article 19 of the
Universal Declaration of Human Rights. The Working Group considers that the
dissemination of human rights messages by Ms. Al-Shehab and Ms. Al-Qahtani on Twitter
falls within the right to freedom of opinion and expression protected under article 19 and that
they were detained for exercising that right.
91.
Furthermore, article 29 (2) of the Universal Declaration of Human Rights provides
that the only legitimate limitations on the exercise of that right must be for the purposes of
securing due recognition and respect for the rights and freedoms of others and of meeting the
just requirements of morality, public order and the general welfare in a democratic society.
According to the established practice of the Working Group, restrictions placed on freedom
of expression can only be justified when it is shown that the deprivation of liberty has a legal
basis in national law, does not violate international law and is necessary to ensure respect for
the rights or reputation of others, or for the protection of national security, public order, public
health or morals, and is proportionate to the pursued legitimate aims.20 In the view of the
Working Group, the Government failed to demonstrate that the detention of Ms. Al-Shehab
and Ms. Al-Qahtani was necessary or proportionate.
92.
Moreover, the criticism of government policy by Ms. Al-Shehab and Ms. Al-Qahtani
through their commentary on social media concerned matters of public interest. The Working
Group thus considers that they were detained for exercising their right, under article 21 (1)
of the Universal Declaration of Human Rights, to take part in the conduct of public affairs.21
The Working Group refers the present case to the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression.
93.
The Working Group finds that the detention of Ms. Al-Shehab and Ms. Al-Qahtani
resulted from the peaceful exercise of their rights or freedoms guaranteed under articles 19
and 21 (1) of the Universal Declaration of Human Rights. Their deprivation of liberty is
arbitrary under category II.
Category III
94.
Given its finding that the deprivation of liberty of Ms. Al-Shehab and Ms. Al-Qahtani
is arbitrary under category II, the Working Group emphasizes that no trial should have taken
place. However, the trials did take place and Ms. Al-Shehab was sentenced to 34 years of
imprisonment and a travel ban for the same period and Ms. Al-Qahtani to 45 years of
imprisonment.
95.
The source submits that, following her arrest on 15 January 2021, Ms. Al-Shehab was
held incommunicado for 13 days. It was only in October 2021, after 10 months of detention
without charge, that she was 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 her arrest, detention and subsequent trial,
without providing any specific information about the duration of the proceedings or any
explanation for the delay.
96.
Given the above, the Working Group considers that the pretrial detention of Ms. Al-
Shehab for more than 10 months without an individualized judicial determination of its
lawfulness undermined her 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.
The time during which Ms. Al-Shehab was deprived of her liberty before being brought
before a judge is a violation of her right to be tried without undue delay, as guaranteed under
articles 10 and 11 (1) of the Universal Declaration of Human Rights and principle 38 of the
Body of Principles.
19 See opinions No. 63/2017, No. 71/2019 and No. 30/2022.
20 Opinions No. 33/2020, paras. 81 and 82; and No. 30/2022, para. 88.
21 See, for example, opinions No. 44/2019, No. 45/2019, No. 15/2020, No. 16/2020 and No. 33/2020.
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97.
The source submits that Ms. Al-Shehab could not initially access a lawyer and that
she was interrogated without an attorney during pretrial detention. In October 2021, her
requests for a defence lawyer were granted, but her conversations with the lawyer could be
heard by law enforcement officers. Sudden changes to the trial schedule of Ms. Al-Shehab
also deprived her and her legal team of adequate time and facilities to prepare her defence.
The Government submits that Ms. Al-Shehab had access to legal representation and that her
requests to appoint a lawyer were granted. However, the Working Group notes that the
Government’s response in this regard was general and did not provide information regarding
Ms. Al-Shehab’s access to legal representation prior to October 2021 or specify the
conditions of confidentiality applicable to her communications with the lawyer.
98.
The Working Group thus considers that the Government violated Ms. Al-Shehab’s
right to legal assistance at all times, 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 10 and 11 of the Universal
Declaration of Human Rights and principles 15, 17 and 18 of the Body of Principles. The
Working Group considers that this violation substantially undermined and compromised her
capacity to defend herself in the judicial proceedings.
99.
The source submits that Ms. Al-Shehab’s 13-day incommunicado detention and
solitary confinement and the threats, insults, harassment and improper methods used during
her interrogation constitute cruel, inhuman or degrading treatment that impaired her ability
to prepare her defence. In its reply, the Government merely states that national legislation
prohibits the use of violence against prisoners or detainees and provides for punishment of
public officials who inflict ill-treatment or torture.
100.
The Working Group notes that the response from the Government is broad and does
not answer the specific allegations raised by the source. The Working Group considers that
the source has presented a credible prima facie case that Ms. Al-Shehab was subjected to
cruel, inhuman or degrading treatment, contrary to article 5 of the Universal Declaration of
Human Rights. The Working Group also recalls that, according to the Committee against
Torture, the right to freedom from torture and other ill-treatment or punishment is absolute
and applies in all circumstances; it may never be restricted.22 No exceptional circumstances
whatsoever, including threats of terrorism or other violent crime, may be invoked to justify
torture or other ill-treatment.
101.
The Working Group considers that torture or ill-treatment of detainees seriously
undermines the fundamental principles of a fair trial as it can compromise their ability to
defend themselves by violating the right not to be compelled to testify against themselves or
to confess guilt.23 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.
102.
According to the source, the hearings in the cases of Ms. Al-Shehab and Ms. Al-
Qahtani were held before the Specialized Criminal Court. The source adds that the
Specialized Criminal Court’s lack of impartiality was previously highlighted by the
Committee against Torture, which found it to be “insufficiently independent”, particularly
because of its refusal to act on claims made by defendants facing terrorism charges that they
had been subjected to torture or ill-treatment during interrogations for the purpose of
compelling a confession.24 The Government does not dispute that Ms. Al-Shehab and Ms. Al-
Qahtani were tried by the Specialized Criminal Court.
103.
The former Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism found, during a visit to Saudi Arabia in
2017, that governmental reorganization had placed the investigatory powers of the Ministry
of the Interior under the authority of the Public Prosecution and the Presidency of State
22 Committee against Torture, general comment No. 4 (2017), para. 8.
23 Opinions No. 22/2019, para. 78; No. 26/2019, para. 104; and No. 56/2019, para. 88.
24 CAT/C/SAU/CO/2, para. 17.
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15
Security, both of which reported directly to the King, and that concerns regarding the lack of
independence of the Specialized Criminal Court therefore remain unresolved.25
104.
The Working Group reiterates that the Specialized Criminal Court cannot be
considered an independent and impartial tribunal that complies with the presumption of
innocence and guarantees necessary for defence.26 The Working Group thus concludes that
the authorities violated the right of Ms. Al-Shehab and Ms. Al-Qahtani to be tried before an
independent and impartial tribunal, contrary to articles 10 and 11 of the Universal Declaration
of Human Rights.
105.
The source submits that the trials of Ms. Al-Shehab at the Specialized Criminal Court
and the Specialized Criminal Court of Appeal were held in closed court with access denied
to members of the public. The Government states that all such trial hearings were public in
accordance with national law. The Working Group recalls that mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations. 27 The Working Group thus finds that the source has established a
credible prima facie case, insufficiently refuted by the Government, that the trial hearings of
Ms. Al-Shehab were held in closed courts, contrary to article 10 of the Universal Declaration
of Human Rights and principle 36 (1) of the Body of Principles.
106.
The source recalls that the right to a fair trial extends to how punishments are
determined and which punishments may be imposed. The source argues that Ms. Al-Shehab
and Ms. Al-Qahtani received disproportionately severe penalties, including penalties for acts,
such as “spread[ing] lies through tweets”, which should not be criminalized in the first place.
The Government denies that the penalties issued against the two individuals were
disproportionate to the crimes committed but does not provide further information on the
matter. The Working Group recalls that it has consistently refrained from taking the place of
the national judicial authorities or acting as a kind of supranational tribunal when it is urged
to review the application of national law by the judiciary.28 Nevertheless, the Working Group
expresses its concern about the lengthy and disproportionate prison sentences imposed on
Ms. Al-Shehab and Ms. Al-Qahtani, especially in view of its findings under category II.
107.
The Working Group concludes that the violations of the right to a fair trial noted above
are of such gravity as to render the detention of Ms. Al-Shehab and Ms. Al-Qahtani arbitrary
under category III.
Category V
108.
According to the source, the arrest, prosecution and treatment of Ms. Al-Shehab and
Ms. Al-Qahtani are the direct result of their political opinions, which led to their unequal
treatment before the law. The source also submits that Ms. Al-Shehab and Ms. Al-Qahtani
were arrested and detained for their human rights advocacy on Twitter and were tried before
the Specialized Criminal Court and the Specialized Criminal Court of Appeal on terrorism
charges despite their activism having nothing to do with terrorism. The source refers to the
findings of the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism showing that, since 2010, the Specialized
Criminal Court has been used increasingly for the prosecution of human rights and political
activists.29 In particular, the source notes that Ms. Al-Shehab’s calls for gender equality and
her gender played a pivotal role in her deprivation of liberty. Given that she was also harassed
for being a Shia Muslim, there is evidence that she was discriminated against based on her
religion.30
25 A/HRC/40/52/Add.2, para. 47.
26 See, for example, opinions No. 22/2019, para. 74; No. 26/2019, para. 102; No. 56/2019, para. 86; and
No. 71/2019, para. 44.
27 A/HRC/19/57, para. 68.
28 Opinions No. 49/2019, para. 58; No. 58/2019, para. 64; No. 60/2019, para. 125; and No. 5/2021,
para. 38.
29 A/HRC/40/52/Add.2. para. 30.
30 Opinion No. 26/2019, paras. 108–110.
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109.
The Government denies that the detention of Ms. Al-Shehab and Ms. Al-Qahtani was
premised on political views, gender, religion or other grounds and references the International
Convention on the Elimination of All Forms of Racial Discrimination and its incorporation
into national law in support of the assertion that it applies the principle of equality to all its
citizens. The Working Group recalls that mere assertions by the Government that lawful
procedures have been followed are not sufficient to rebut the source’s allegations.
110.
In the discussion above concerning category II, the Working Group established that
the detention of Ms. Al-Shehab and Ms. Al-Qahtani resulted from the peaceful exercise of
their fundamental rights. When detention has resulted from the active exercise of civil and
political rights, as is the case here, there is a strong presumption that the detention also
constitutes a violation of international law on the grounds of discrimination based on political
or other views.
111.
The Working Group notes that the political views and human rights advocacy of
Ms. Al-Shehab and Ms. Al-Qahtani 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. The arrests, treatment and lengthy sentences of Ms. Al-Shehab and Ms. Al-
Qahtani indicate that they were discriminated against for their human rights activism and for
sharing their views peacefully on social media, as well as on the basis of gender and religion
in the case of Ms. Al-Shehab.
112.
The Working Group therefore finds that the deprivation of liberty of Ms. Al-Shehab
and Ms. Al-Qahtani contravenes articles 2 and 7 of the Universal Declaration of Human
Rights and principle 5 (1) of the Body of Principles, and is arbitrary under category V.
Disposition
113.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Salma bint Sami bin Abdulmohsen al-Shehab, being in
contravention of articles 2, 3, 6, 7, 8, 9, 10, 11, 19 and 21 of the Universal Declaration
of Human Rights, is arbitrary and falls within categories I, II, III and V.
The deprivation of liberty of Nourah bin Saeed al-Qahtani, being in contravention of
articles 2, 3, 7, 9, 10, 11, 19 and 21 of the Universal Declaration of Human Rights, is
arbitrary and falls within categories I, II, III and V.
114.
The Working Group requests the Government of Saudi Arabia to take the steps
necessary to remedy the situation of Ms. Al-Shehab and Ms. Al-Qahtani 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.
115.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Al-Shehab and Ms. Al-Qahtani
immediately and accord them an enforceable right to compensation and other reparations, in
accordance with international law. In the context of the global coronavirus disease (COVID-
19) pandemic and the threat that it poses in places of detention, the Working Group calls
upon the Government to take urgent action to ensure the immediate release of Ms. Al-Shehab
and Ms. Al-Qahtani.
116.
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-
Shehab and Ms. Al-Qahtani and to take appropriate measures against those responsible for
the violation of their rights.
117.
The Working Group requests that the Government revise its laws, particularly the
Anti-Terrorism Law, to meet the requirements of due process and a fair trial, in conformity
with the findings in the present opinion and with its obligations under international law.
118.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, the Special Rapporteur on the promotion and protection
of human rights and fundamental freedoms while countering terrorism and the Special
A/HRC/WGAD/2023/27
GE.23-11034
17
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, for
appropriate action.
119.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
120.
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-Shehab and Ms. Al-Qahtani have been released and, if so, on
what date;
(b)
Whether compensation or other reparations have been made to Ms. Al-Shehab
and Ms. Al-Qahtani;
(c)
Whether an investigation has been conducted into the violation of rights of
Ms. Al-Shehab and Ms. Al-Qahtani 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.
121.
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.
122.
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.
123.
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.31
[Adopted on 3 April 2023]
31 Human Rights Council resolution 51/8, paras. 6 and 9.