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.24-08446 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-ninth session, 18–27 March 2024
Opinion No. 10/2024 concerning Muhammad 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 7 November 2023 the Working Group
transmitted to the Government of Saudi Arabia a communication concerning Muhammad
al-Ghamdi. The Government replied to the communication on 3 January 2024. 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).
* Miriam Estrada-Castillo did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/10
General Assembly
Distr.: General
23 May 2024
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Muhammad al-Ghamdi is a citizen of Saudi Arabia, born in 1968. He is a retired
teacher and holds a Bachelor of Arts degree. He usually resides in Mecca, Saudi Arabia.
(i)
Context
5.
The source submits that Mr. Al-Ghamdi’s situation is part of a widespread practice to
silence dissent and opposition in Saudi Arabia.
6.
Mr. Al-Ghamdi is not a political or human rights activist, but a private citizen who
expressed his opinion and concerns peacefully on the Internet through posts on social media
and viewed and followed social media accounts on political and social discourse. Before his
current detention, Mr. Al-Ghamdi maintained a good reputation, and had never been arrested
or detained.
7.
The subject matter of his opinions, expressed through posts on social media, included
concerns about the Government’s oppression and corruption, the rights of detainees,
unemployment and the high cost of living in Saudi Arabia.
(ii)
Arrest and detention
8.
The source reports that on 11 June 2022, Mr. Al-Ghamdi was arrested by a detective
of the Saudi security services in front of his home in the Al-Nouriyyah neighbourhood of
Mecca.
9.
Mr. Al-Ghamdi was reportedly initially detained in Dhahban prison, which is under
the authority of the Presidency of State Security in Jeddah. For the first four months of his
detention following his arrest on 11 June 2022, Mr. Al-Ghamdi was allegedly held in solitary
confinement and incommunicado without being provided with any reason to justify this
measure. During his solitary confinement, Mr. Al-Ghamdi was reportedly interrogated and
was not given access to legal representation or assistance.
10.
On 26 June 2022, a judicial document was issued that reportedly confirmed the
charges brought against Mr. Al-Ghamdi and demonstrated that they were being brought as a
result of the opinions and concerns that he had expressed on social media, and social media
accounts that he had viewed and followed. The source highlights that this judicial document
listed two anonymous social media accounts, which had two and eight followers respectively.
This information was later included in the judgment and sentencing decision of 13 July 2023.
11.
Reportedly, Mr. Al-Ghamdi was charged under articles 30, 34, 43 and 44 of the
Counter-Terrorism and Financing of Terrorism Act of 2017, and the Prosecutor sought the
maximum penalty of a death sentence for each charge. Mr. Al-Ghamdi was charged with
using the Internet and his electronic devices contrary to article 43 of the Act to express public
comments that allegedly amounted to the following: undermining the religion and justice of
the King and the Crown Prince, contrary to article 30; spreading false rumours with the intent
to disrupt public order, destabilize the security of society and endanger national unity,
contrary to article 44; supporting terrorist ideology and a terrorist group, contrary to article
34; and betraying his religion, country and rulers.
12.
According to the source, the Government first instructed a lawyer for Mr. Al-Ghamdi
in December 2022. It is argues, therefore, that Mr. Al-Ghamdi did not have legal
representation assigned to him from his arrest on 11 June 2022 until December 2022,
including during the first four months of his detention while he was held in solitary
confinement, incommunicado, and interrogated.
13.
The source notes that there were concerns that the lawyer assigned by the Government
was biased and potentially harmful to Mr. Al-Ghamdi’s defence. For instance, the lawyer did
not attend any of the interrogations of Mr. Al-Ghamdi conducted during the course of his
instructions from December 2022 to March 2023, and refused to recognize Mr. Al-Ghamdi’s
diagnosed mental health conditions or to utilize existing medical reports, which could have
provided an avenue of defence under Saudi law.
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14.
In January 2023, Mr. Al-Ghamdi was reportedly transferred to Al-Ha’ir prison in
anticipation of trial proceedings, which started in May 2023. The trial was the first time
Mr. Al-Ghamdi was brought before a judge, nearly a year after his arrest in June 2022.
15.
The source adds that approximately three or four trial sessions were held before the
final session, held on 10 July 2023, when both the judgment and the death sentence were
delivered.
16.
Allegedly, Mr. Al-Ghamdi’s lawyer was dismissed in March 2023 owing to the
above-mentioned bias concerns. However, because of difficulties in finding a new lawyer,
only on 2 May 2023 was a new lawyer instructed by Mr. Al-Ghamdi’s family.
Mr. Al-Ghamdi was therefore left without a lawyer from March 2023, when his first lawyer
was dismissed, until 2 May 2023, when the new one was appointed.
17.
Reportedly, Mr. Al-Ghamdi’s second lawyer was instructed only shortly before the
start of the trial sessions in May 2023, not leaving sufficient time for the lawyer to read into
the case and prepare. Moreover, it is submitted that communications between Mr. Al-Ghamdi
and his newly appointed lawyer were limited to encounters before court sessions, despite the
lawyer’s attempts to meet with Mr. Al-Ghamdi earlier.
18.
On 10 July 2023, the Specialized Criminal Court sentenced Mr. Al-Ghamdi to death.
The source submits that his family tried to attend the trial but were prevented from doing so.
19.
The trial judgment and sentencing document, both delivered together at the court
session on 10 July 2023 and in a written judgment on the same date, reportedly stated that
the complete case file would be forwarded to the appeal court for review as required by law.
In this regard, the source understands that the appeal process continues, but has little
information about its status.
20.
There has reportedly been no developments in Mr. Al-Ghamdi’s appeal process, and
he has been returned to Dhahban prison in Jeddah, where he is currently being detained. Since
Mr. Al-Ghamdi’s return to Dhahban prison, there have been no other developments as to the
status of the appeal proceedings. No court sessions for the appeal have been reported, and the
appeal decision might be issued without a session in court before a judge.
21.
According to the source, it appears that the appeal court will make an imminent
decision on the appeal, which raises concerns that the appeal judgment might suddenly
confirm the charges and sentence against Mr. Al-Ghamdi, allowing the authorities to carry
out the death sentence. Additionally, given that Mr. Al-Ghamdi was able to communicate
with his lawyer before the court sessions only and that the proceedings have now moved to
the appeal stage without any court sessions scheduled, Mr. Al-Ghamdi’s communication with
his lawyer has been further limited.
22.
Reportedly, Mr. Al-Ghamdi’s family was recently allowed to visit him, but they were
not able to speak freely with him.
23.
The source submits that Mr. Al-Ghamdi’s denial of adequate health care has
contributed to the pain and suffering that he has experienced in detention, and that a series of
violations of Mr. Al-Ghamdi’s fundamental rights have culminated in amounting to cruel,
inhuman and degrading treatment and, psychological torture. According to the source,
Mr. Al-Ghamdi has been subjected to extreme emotional and psychological pressure and
suffering by being held in solitary confinement, without explanation, for the first four months
of his detention, while also being denied a lawyer and communication with his family; being
denied a lawyer for large periods of his detention; and being denied the medical care and
medication that he needs and that has been prescribed for his health conditions, including
schizophrenia, bipolar disorder and delusional disorder, which has resulted in a deterioration
of his health.
24.
The source highlights the extreme psychological pressure that Mr. Al-Ghamdi has
experienced in detention and argues that in the absence of the medication prescribed to him
to manage his mental health conditions, his conditions have been uncontrolled, particularly
after the death sentence was imposed.
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(iii)
Obligations under international law
25.
The source submits that although Mr. Al-Ghamdi’s detention and judicial proceedings
are governed by domestic law, Saudi Arabia is obliged to apply international law that it has
agreed to respect.
26.
The source argues that Saudi Arabia must respect the rights and protections set out in
the Universal Declaration of Human Rights, as adopted by the General Assembly.2 Saudi
Arabia is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and has ratified the Arab Charter on Human Rights. The source
adds that Saudi Arabia should be informed by the guidance set out in the United Nations
Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
(iv)
Legal analysis
27.
The source argues that the arrest and detention of Mr. Al-Ghamdi are arbitrary under
categories II and III.
a.
Category II
28.
The source recalls that the Universal Declaration of Human Rights sets out the rights
to freedom of expression and association in articles 18, 19 and 20. Specifically, article 19
guarantees not only the right to freedom of opinion and expression, but also the freedom to
seek, receive and impart information and ideas through any media and regardless of frontiers.
29.
It is submitted that while Mr. Al-Ghamdi is not a political or human rights activist, he
has been increasingly expressing his opinions and concerns on the Internet in recent years,
concerning the Government’s alleged oppression and corruption, the rights of detainees,
unemployment and the high cost of living in Saudi Arabia.
30.
The source argues that several factors demonstrate that Mr. Al-Ghamdi’s arrest and
detention, as well as his prosecution, conviction and death sentence, were in response to the
legitimate exercise of human rights and, specifically, that his deprivation of liberty is as a
result of the exercise of the rights or freedoms guaranteed by the Universal Declaration of
Human Rights.3 The source asserts that these factors include the judicial document that
confirmed the charges of the prosecutor, the focus of Mr. Al-Ghamdi’s interrogations after
his arrest, and the judgment following trial whereby he was found guilty of the alleged
charges and sentenced to death.
31.
The source notes that following Mr. Al-Ghamdi’s arrest on 11 June 2022, a judicial
document issued on 26 June 2022 confirmed the charges brought against him and
demonstrated that they were being brought as a result of the opinions and concerns that he
had expressed on social media, and social media accounts that he had viewed and followed.
32.
It is submitted that following his arrest and charges, the focus of Mr. Al-Ghamdi’s
interrogations while in custody further demonstrate that he was arrested, detained and
prosecuted by the Saudi security services as a result of having publicly expressed his thoughts,
opinions and concerns on the Government’s actions and policies.
33.
Mr. Al-Ghamdi’s interrogations reportedly focused on his posts on social media and
his political opinions. Moreover, he was questioned about his thoughts and sympathies for
individuals known to be political prisoners or prisoners of conscience, who had also been
arrested and prosecuted by the Saudi authorities for exercising their right to freedom of
expression, particularly through the Internet and social media.
34.
The source further submits that the judgment of 10 July 2023 by the Specialized
Criminal Court confirmed that Mr. Al-Ghamdi was convicted of the crimes alleged, which
related only the opinions and concerns that he had expressed and the content that he had
2 General Assembly resolution 217 (III) A.
3 See Working Group on Arbitrary Detention: Fact Sheet No. 26 Rev. 1 (United Nations publication,
2024).
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viewed on social media. In addition, the Court sentenced Mr. Al-Ghamdi to death, stating
that he was being punished publicly for the heinous crimes that he had committed.
35.
The source notes that the Working Group has previously found that violations of the
right to freedom of expression and association, and instances of arrest and detention and legal
proceedings brought as a result of the exercise of these rights, render the detention of the
detained individuals arbitrary.4 Moreover, the source recalls that the Working Group has
found that expressing criticism of one’s country and its leaders and communicating with other
political actors in a peaceful way should not be categorized as an attempt to overthrow a
Government, and that the restrictions on those rights cannot be considered to be proportionate
and justified.5
36.
According to the source, following the adoption in 2014 of counter-terrorism
legislation, reports have documented repressive arrest campaigns that have targeted citizens
and activists on charges related to freedom of opinion and expression.6 The source argues that
this pattern has continued during the period in which Mr. Al-Ghamdi was arrested, detained,
convicted and sentenced to death for expressing his views.
37.
It is submitted that the increased attention paid by Saudi Arabia to online expression
of dissent and criticism against the Government has been accompanied by the use of terrorism
laws and harsh punishments. The source argues that punishments under the
Counter-Terrorism and Financing of Terrorism Act for online expression, which include the
death penalty and imprisonment for multiple decades, are disproportionate compared with
those for serious crimes involving explosives or hijacking, which include a maximum of
30 years’ imprisonment.
38.
The source concludes that Mr. Al-Ghamdi’s deprivation of liberty is as a result of the
legitimate exercise of his rights to freedom of thought and conscience, freedom of expression
and opinion and freedom of association and assembly, and is arbitrary under category II.
b.
Category III
39.
The source argues that Mr. Al-Ghamdi’s detention is arbitrary under category III as
his fundamental right to a fair trial and right of access to an independent and impartial tribunal
have been violated.
40.
The source argues that in addition to the general pronouncement on fair trial rights
under article 10 of the Universal Declaration of Human Rights, Saudi Arabia should be
guided by the Nelson Mandela Rules.
41.
The source recalls that solitary confinement and incommunicado detention are
contrary to international protections. Rule 43 of the Nelson Mandela Rules prohibits
indefinite and prolonged solitary confinement. As stated in rule 3 of the Nelson Mandela
Rules, imprisonment and other measures that result in cutting off persons from the outside
world are afflictive by the very fact of taking from these persons the right of
self-determination by depriving them of their liberty. Detention which is solitary or
incommunicado without justification and necessity aggravates the suffering inherent in such
a situation.
42.
The source recalls that such protections were not afforded to Mr. Al-Ghamdi for the
first four months of his detention.
43.
The source submits that Mr. Al-Ghamdi’s solitary confinement was also
incommunicado, as his family were prevented from contacting or visiting him for four
months. Upon his release from solitary confinement, Mr. Al-Ghamdi was reportedly allowed
a call to his family and a limited number of visits before January 2023, when he was moved
to Al-Ha’ir prison in Riyadh, approximately 945 kilometres away and too far for regular
family visits.
4 See opinion No. 60/2013.
5 Ibid., para. 21.
6 Office of the United Nations High Commissioner for Human Rights, “UN rights expert raises alarm
over Saudi Arabia’s growing clamp down on freedom of expression”, 16 December 2015.
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44.
The source highlights the extreme vulnerability of Mr. Al-Ghamdi during the first four
months of his detention, when he was held in solitary confinement and incommunicado.
During this period, Mr. Al-Ghamdi was reportedly interrogated without legal representation.
45.
According to the source, Mr. Al-Ghamdi’s lack of access to legal counsel during his
interrogations while in solitary confinement put him at risk of unmonitored treatment and
potential abuse, contrary to article 15 of the Convention against Torture, and meant that there
was a risk that the interrogation could result in evidence relied upon at trial that had been
collected improperly, coercively or without Mr. Al-Ghamdi’s full understanding of the
relevant charges, law and procedure.
46.
The source recalls that the Nelson Mandela Rules acknowledge that the afflictive
nature of imprisonment is aggravated by conditions such as solitary confinement and
incommunicado detention, which are detrimental to the well-being of prisoners.
47.
Given all of the above, the source concludes that the legal basis justifying
Mr. Al-Ghamdi’s detention is not accessible, understandable or applied in a consistent and
predictable way,7 and that his detention is arbitrary in nature.
48.
The source notes that domestic law in Saudi Arabia provides that all accused persons
have the right to seek the assistance of a lawyer or a representative to defend them during the
investigation and trial stages. The right to legal representation upon arrest and charge, and
during legal proceedings, is also protected in the Nelson Mandela Rules.
49.
According to the source, Mr. Al-Ghamdi’s right to instruct and consult a lawyer was
breached during his detention, interrogations and preparations for his trial.
50.
It is submitted that Mr. Al-Ghamdi was not afforded access to a lawyer during
interrogations while in solitary confinement for the first four months of his detention.
Moreover, since the nature of the questions asked during interrogations focused on
Mr. Al-Ghamdi’s expressed opinions and perceived associations and sympathies, it would
have been imperative to ensure his access to legal counsel and his full understanding as to
the charges against him, the proceedings under the Counter-Terrorism and Financing of
Terrorism Act and the process before the Specialized Criminal Court.
51.
The source reports that Mr. Al-Ghamdi was provided with a State-appointed lawyer
only in December 2022, which means that from the moment of his arrest on 11 June 2022
and throughout his subsequent detention until December 2022, he did not have access to legal
counsel. The source recalls that during the first four months of his detention, Mr. Al-Ghamdi
was held in solitary confinement and incommunicado while being interrogated.
52.
Moreover, it is argued that the State-appointed lawyer revealed a negative bias against
Mr. Al-Ghamdi and took actions against his interests and ability to prepare and present a
defence. For instance, the source explains that Mr. Al-Ghamdi’s lawyer refused to recognize
his client’s diagnosed mental health conditions or to utilize existing medical reports, which
could have provided an avenue of defence under Saudi law. Pursuing such a defence was
deemed important given that asserting that Mr. Al-Ghamdi’s actions constituted his exercise
of the right to freedom of expression does not constitute a viable defence in Saudi Arabia.
53.
The source explains that no lawyers wished to put forth an argument regarding
Mr. Al-Ghamdi’s diagnosed mental health conditions for fear of severe consequences,
including arrest or revocation of their licence, as has reportedly happened to other lawyers
and a former judge. The source submits that in the light of the lawyer’s refusal to recognize
Mr. Al-Ghamdi’s diagnosed mental health conditions or the possibility that these diagnoses
might assist in his defence under Saudi law, a change of lawyer was requested, and the
Government-appointed lawyer was dismissed in March 2023. Mr. Al-Ghamdi’s family was
thus left responsible for finding and instructing a lawyer to assist him.
54.
The process of finding a lawyer to represent Mr. Al-Ghamdi was reportedly difficult
and required significant efforts. According to the source, many of the lawyers approached to
represent Mr. Al-Ghamdi refused the case out of fear of reprisal by the authorities, including
fear of arrest. Not until 2 May 2023 was a second lawyer obtained and instructed to represent
7 A/HRC/22/44, para. 62.
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Mr. Al-Ghamdi, meaning that Mr. Al-Ghamdi was left without legal representation for a
second period, from March to May 2023. The source adds that the lawyer’s instruction was
achieved and recognized only after the case was referred to the Specialized Criminal Court
in May 2023.
55.
The source argues that the Saudi authorities should have been aware that
Mr. Al-Ghamdi was without the assistance of counsel, in particular to be present and assist
with interrogations or preparations for trial. However, Mr. Al-Ghamdi’s detention continued
and the proceedings against him progressed regardless of his lack of legal representation and
in violation of his rights, leaving him without the ability to challenge his detention before a
court, or to apply to come before a judge.
56.
The source argues that Mr. Al-Ghamdi’s access to his lawyer upon instruction in May
2023 is also of concern, and recalls rule 120 of the Nelson Mandela Rules. Reportedly,
Mr. Al-Ghamdi was able to speak or meet with his lawyer before the court sessions only,
which undermined his ability to ask questions to fully understand the charges and
proceedings against him, provide instructions to his lawyers and participate in preparing a
defence.
57.
The source concludes that Mr. Al-Ghamdi’s right to legal representation has been
breached, which has affected his right to a fair trial and due process.
58.
The source recalls rules 61 and 120 (1) of the Nelson Mandela Rules, which provide
guidance on the right of prisoners to be provided with adequate opportunity, time and
facilities to be visited by and to communicate and consult with a legal adviser of their own
choice, without delay and in full confidentiality.
59.
These protections, and consequently the right to fair trial, were reportedly denied to
Mr. Al-Ghamdi. According to the source, Mr. Al-Ghamdi was not represented by a lawyer
acting in his interests during two periods: first, from the moment of his arrest until he was
appointed a lawyer by the Government; and second, from that lawyer’s dismissal in March
2023 until a new lawyer was instructed by his family in May 2023. During these periods,
Mr. Al-Ghamdi was reportedly interrogated.
60.
The source adds that Mr. Al-Ghamdi had access to his instructed lawyer before court
appearances and proceedings only. Thus, the source argues that Mr. Al-Ghamdi was not
granted adequate time or facilities to consult with his lawyer, provide instructions and be
involved in the preparation of his defence.
61.
It is submitted that the ability of Mr. Al-Ghamdi’s lawyer to fully present a case in his
client’s defence was limited to defence submissions, without the ability to summon witnesses.
62.
Allegedly, the court did not consider existing medical reports, which
Mr. Al-Ghamdi’s second lawyer sought to rely upon as a defence against his client’s charges
under Saudi law, and the court further rejected requests from the defence to refer
Mr. Al-Ghamdi to a medical authority to assess his mental and psychological condition.
63.
The source concludes that Mr. Al-Ghamdi’s restricted consultation and
communication with a lawyer during his detention and interrogations and, upon instruction,
his lack of regular access to his lawyer detrimentally affected his ability to prepare and
present a defence. The limitations on his lawyer’s ability to call witnesses, submit medical
reports and request a medical referral during the trial proceedings equally affected the
presentation of a defence case for Mr. Al-Ghamdi, in violation of his due process and fair
trial rights.
64.
The source submits that Mr. Al-Ghamdi’s right to an independent and impartial
tribunal has been violated given that the domestic proceedings against him, including his trial,
have been heard by the Specialized Criminal Court. This court was created in 2008 to address
serious terrorist activities but has allegedly been increasingly used to target and prosecute
individuals expressing opinions or criticisms, and peaceful activists who dissented from the
views of the Government.
65.
The source adds that human rights reports have raised the alarm over the adjudication
by the Specialized Criminal Court of cases that are within the jurisdiction of other Saudi
domestic courts but where it is possible for the Specialized Criminal Court to impose more
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severe sentences, and that it is not independent of the Ministry of the Interior. For instance,
it is submitted that the identity of the judges involved in the trial of Mr. Al-Ghamdi was kept
confidential throughout the trial proceedings. It is also noted that the Court refused to allow
Mr. Al-Ghamdi’s family to attend the sentencing session at which he was sentenced to death,
and that it refused Mr. Al-Ghamdi’s attempts to defend himself during the trial against certain
detailed allegations regarding his online expressions, denying him the right to challenge the
accuracy of the alleged statements for which he was charged.
66.
The source argues that the Specialized Criminal Court should have been aware of
Mr. Al-Ghamdi’s prolonged solitary confinement lasting the first four months of his
detention, during which he had been interrogated without access to legal representation to
assist him. The source adds that the Court should have known of Mr. Al-Ghamdi’s struggle
to instruct a lawyer to act in his best interests, and that he was without counsel for nearly the
first year of his detention. However, no steps were reportedly taken by the Court to address
and correct these violations of Mr. Al-Ghamdi’s right to a fair trial, and it did not allow
requests for witnesses for the defence, a medical referral or the consideration of certain
existing medical reports.
67.
Mr. Al-Ghamdi’s right to a fair trial has been violated as he did not have access to an
independent and impartial tribunal in the Specialized Criminal Court.
68.
The source recalls that international rights and protections support the right of
individuals in detention to communicate regularly with family.
69.
The source submits that under rule 68 of the Nelson Mandela Rules and article 14 of
the Arab Charter on Human Rights, together with article 12 of the Universal Declaration of
Human Rights, Saudi Arabia is obligated to provide for regular communications and visits
between detained individuals and their family.
70.
The source argues that Mr. Al-Ghamdi has been denied these rights and protections
during his deprivation of liberty: both during the first four months of Mr. Al-Ghamdi’s
detention, when he was held in solitary confinement without any ability to communicate with
his family; and after his release from solitary confinement, as he was allowed only a few
irregular calls and visits before he was moved to Al-Ha’ir prison in Riyadh, approximately
945 kilometres away from where his family is located, removing the possibility of regular
family visits.
71.
It is reported that Mr. Al-Ghamdi’s ability to freely communicate with his family
during calls has been limited. For instance, a call with Mr. Al-Ghamdi was reportedly cut off
by the authorities listening in on the telephone conversation after he told his family that he
was suffering in detention. The source notes that such restrictions on communication can
mean that instances of abuse, torture and other mistreatment go unreported and unaddressed.
72.
The source notes the advantages that family communications and visits bring to a
detained individual’s well-being and sense of dignity, and the critical importance of
monitoring the authorities’ compliance with their obligations to protect and ensure
fundamental rights. For instance, it is submitted that the denial of access to and
communication with Mr. Al-Ghamdi during the first four months of his detention while in
solitary confinement resulted in his family not being able to assist him earlier with instructing
a suitable lawyer.
73.
The source concludes that not only has Mr. Al-Ghamdi’s right of access to his family
been violated, but this violation has had serious implications and caused further violations of
his right to a fair trial and due process.
74.
The source recalls article 25 of the Universal Declaration of Human Rights and
rules 24 to 35 of the Nelson Mandela Rules on health care.
75.
The source submits that prior to his arrest and detention, Mr. Al-Ghamdi was
diagnosed with medical conditions for which he was prescribed medications that he must
take regularly. These medical conditions include epilepsy, with which he was diagnosed in
childhood and for which he has been treated with medication for the past 40 years, and mental
health conditions for which he was evaluated and was receiving treatment with medication
before his arrest.
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76.
According to the source, while the authorities have continued to provide
Mr. Al-Ghamdi with his medication for epilepsy, they have refused to provide him with the
prescribed medications to effectively manage his diagnosed mental health conditions. This
refusal is despite existing medical reports documenting his condition and a request for
Mr. Al-Ghamdi to be medically evaluated, which was rejected.
77.
The source argues that because Mr. Al-Ghamdi has been without these prescribed
medications for more than a year and four months, throughout his detention, his health has
deteriorated.
78.
The source concludes that Saudi Arabia has violated Mr. Al-Ghamdi’s right to health
care.
79.
It is submitted that Mr. Al-Ghamdi’s rights not to be subjected to abusive treatment,
or to cruel, inhuman and degrading treatment and potentially psychological torture, have been
and continue to be violated. Reportedly, Saudi officials have placed Mr. Al-Ghamdi under
extreme emotional and psychological pressure, particularly during the first four months of
his detention, when he was held in solitary confinement and incommunicado without being
provided with any reason to explain the need for this measure.
80.
The source recalls that article 15 of the Convention against Torture addresses the
inadmissibility of evidence obtained by acts of torture. The source argues that Mr. Al-Ghamdi
was placed in a position whereby he was interrogated under emotional and psychological
pressure, as he was interrogated without legal counsel and therefore without a full
understanding of the charges or the procedure, while worrying that the information that he
provided would be used as incriminating evidence against him.
81.
In addition, the source notes that the emotional pressure and stress caused by
Mr. Al-Ghamdi’s solitary confinement and incommunicado detention continued with his
current detention.
82.
According to the source, Mr. Al-Ghamdi’s stress and anxiety increased exponentially
after having been sentenced to death in trial proceedings in which he was reportedly denied
his right to a fair trial and before a court that the Working Group has found not to be an
impartial or independent body.8
83.
The source submits that the failure to provide Mr. Al-Ghamdi with adequate medical
care, through the refusal to provide him with his prescribed medication to manage his mental
health, has contributed to the violation of Mr. Al-Ghamdi’s right not to be subjected to
psychological torture and other abusive and degrading treatment. It is argued that the impact
of experiencing the significant deterioration of his psychological and mental health while
knowing that it is due to the denial of medication by the detaining authorities must be
recognized as overwhelming, cruel and degrading, and could be understood to constitute
psychological torture.
(b)
Response from the Government
84.
On 7 November 2023, the Working Group transmitted the allegations from the source
to the Government of Saudi Arabia under its regular communication procedure. The Working
Group requested the Government to provide detailed information by 8 January 2024 about
the current situation of Mr. Al-Ghamdi.
85.
On 3 January 2024, the Government submitted its reply. The Government recalls a
joint urgent appeal sent by a number of special procedure mandate holders, including the
Working Group, regarding the case of Mr. Al-Ghamdi.9 The Government requests that its
response, dated 11 November 2023, be taken into account by the Working Group in issuing
its opinion.
86.
The Government denies any violations under category II. It states that Mr. Al-Ghamdi
was arrested, charged and convicted by the first-instance court for terrorist crimes, including
8 Opinion No. 27/2023, para. 43.
9 See communication SAU 8/2023, available from
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=28381.
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seeking to incite sedition, spreading chaos, disrupting public security and inciting such
actions. These acts cannot be justified under any circumstances, as stated in the Declaration
on Measures to Eliminate International Terrorism.10 While free speech is protected in Saudi
Arabia, Mr. Al-Ghamdi’s actions constituted terrorist acts. The procedures and guarantees
adopted in his case were in accordance with international standards for a fair trial and due
legal process. The judgment against him is supported by sufficient evidence, his trial has been
held within a reasonable time frame and he enjoys all rights to defend himself.
87.
All domestic laws are formulated with sufficient precision and clarity. The Kingdom
protects freedom of thought and expression, and nobody is held in detention for exercising
their rights and freedoms.
88.
The Government submits that the death penalty is handed down for only the most
serious offences and within the narrowest limits, and is carried out only after all judicial
procedures have concluded, with respect for a fair trial and due process, in compliance with
the international commitments of Saudi Arabia under international human rights law. It refers
to Economic and Social Council resolution No. 1984/50.
89.
The Government submits that the Counter-Terrorism and Financing of Terrorism Act
is aligned with the United Nations Global Counter-Terrorism Strategy, and it refers to several
resolutions of the Security Council and the General Assembly. Action taken against
Mr. Al-Ghamdi complies with articles 18,19 and 20 of the Universal Declaration of Human
Rights.
90.
According to the Government, Mr. Al-Ghamdi was arrested on the basis of an arrest
warrant issued by the competent authority, he was informed of the reasons for his arrest and
his rights on the day of his arrest, and he signed an acknowledgement thereof. During
interrogations, he was asked clear questions free of any deception or ambiguity. Following
the investigation, the investigating authority deemed the evidence against Mr. Al-Ghamdi to
be sufficient to charge him. The right to challenge the legality of arrest or detention is
guaranteed to all persons in custody, pursuant to article 115 of the Code of Criminal
Procedure. The court deemed it necessary to try him while on remand. These measures were
consistent with relevant international standards, including principle 2 of the United Nations
Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, principles 17
and 18 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, principle 9 of the Basic Principles and Guidelines on the Right
to a Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law, measures relating to the right
of all persons deprived of liberty in the form of arrest or detention to bring a case before the
courts, and article 14 (3) of the International Covenant on Civil and Political Rights.
91.
The Government asserts that Mr. Al-Ghamdi was informed of his right to legal
assistance at the investigative and trial stages and that he engaged an attorney to act in his
defence at the expense of the State pursuant to an application submitted by him to the court,
that he regularly met his attorney in his place of detention to discuss the case, and that the
necessary facilities and adequate time were provided to prepare the defence. It observes that
the counter-memorandums submitted by Mr. Al-Ghamdi’s lawyer did not contain a request
to call witnesses to refute the accusations against Mr. Al-Ghamdi.
92.
According to the Government, Mr. Al-Ghamdi attended his trial in the presence of the
public prosecutor and his case was considered by an independent and impartial court, the
Specialized Criminal Court, in a fair and open trial. This court was established by the
Supreme Judicial Council, under article 6 of the Judiciary Act. Judicial procedures of the
Specialized Criminal Court are the same as those of other criminal courts according to
domestic law. Judges are appointed by royal order pursuant to a decision of the Supreme
Judicial Council, in accordance with article 47 of the Judiciary Act, and progress through the
judicial hierarchy provided for in articles 31 to 42 of the Act. They are appointed after
obtaining accredited certification and meeting certain conditions.
10 General Assembly resolution 49/60, annex, para. 3.
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11
93.
The Government denies any violations under category III. Domestic laws guarantee
the right to a fair and open trial before an independent court. The judiciary derives its
authority and sovereignty from sharia, which requires justice to be the foundation of
judgment and is the guarantee of judicial independence, under articles 46, 48 and 49 of the
Basic Law of Governance and article 1 of the Judiciary Act. The initial judgment against
Mr. Al-Ghamdi was based not on the confession exclusively but on the totality of evidentiary
support, including arrest and search records, witness statements and court deliberations,
during which a number of procedures, including witness testimony, review of transcripts,
eyewitness statements and the expert testimony of a pathologist, were admitted. Moreover,
Mr. Al-Ghamdi’s case is currently under appeal, and the situation has been and continues to
be monitored by the Human Rights Commission, which has not observed any indication of a
violation of rights.
94.
On the allegations regarding Mr. Al-Ghamdi’s solitary confinement during the first
four months of his detention, the Government states that he was arrested under the
Counter-Terrorism and Financing of Terrorism Act, under which the investigative authority
has the right to prevent accused persons from communicating with third parties for a specified
period of time in exceptional circumstances during investigations, without prejudice to the
right of accused persons to contact their relatives and legal representatives. That legal
measure is consistent with international standards, including the Nelson Mandela Rules and
principle 19 of the Body of Principles, and accused persons still enjoy the right to appeal the
legality of their detention. Measures to prevent accused persons from contacting third parties
in the Kingdom are subject to certain legal restrictions. The Kingdom treats torture as a
criminal offence, punishable by law. Thus, the Counter-Terrorism and Financing of
Terrorism Act stipulates that solitary confinement may be imposed only in exceptional
circumstances set out in law, without prejudice to the right of accused persons to inform
relatives of their arrest. The court has the right to issue an order forbidding communication
with or visits to the accused person for a period of not more than 90 days, if required. The
detainee or prisoner has the right to submit a complaint, pursuant to article 39 of the Code of
Criminal Procedure.
95.
The Government denies that Mr. Al-Ghamdi was prevented from submitting medical
reports regarding his condition. Referral of Mr. Al-Ghamdi to a medical authority for
consideration of his mental and psychological state was subject to judicial assessment:
following perusal of the complete case file by the court of first instance hearing the case, the
summoning of Mr. Al-Ghamdi and the reading of the general indictment, the court saw no
reason to refer him to a specialist in psychiatric medicine. In addition, the Government states
that Mr. Al-Ghamdi is in good health, has visited several medical clinics and has been
provided with the necessary medications and regular follow-up checks. The Government
refers to its domestic law. It affirms that Mr. Al-Ghamdi’s treatment is consistent with
rules 24 (1), 30 and 56 (1) of the Nelson Mandela Rules and reiterates that all detainees are
provided with free and appropriate health care.
96.
The Government denies that Mr. Al-Ghamdi’s telephone calls were subject to any
form of spying. Since his arrest, his right to visits and regular communication have been
respected: he has received 14 general visits (the last being on 18 December 2023), 11 private
visits (the last being on 17 December 2023) and 57 telephone calls (the last being on
26 December 2023). He has been enabled to meet his lawyer regularly for consultation at his
place of detention. His treatment is consistent with rule 68 of the Nelson Mandela Rules.
97.
Lastly, the Government reminds the Working Group to fully adhere to its methods of
work, and to the Code of Conduct for Special Procedure Mandate Holders of the Human
Rights Council, adopted by the Council in its resolution 5/2 of 18 June 2007, in particular its
obligations under articles 6 (a) to (c), 9 (a), (d) and (e), 12 and 13 (a) and (b) thereof.
(c)
Further comments from the source
98.
In its response of 31 January 2024, the source reiterates its initial submissions and
provides further details to rebut the Government’s submissions, as discussed below. The
source argues that the Government merely denied the allegations as untrue, while failing to
demonstrate that Mr. Al-Ghamdi has been afforded the procedural guarantees cited in its
response. It submits that simply listing laws that should be applied does not demonstrate that
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these safeguards were indeed afforded, and therefore does not invalidate the allegations that
Mr. Al-Ghamdi’s rights have been violated.
2.
Discussion
99.
The Working Group thanks the source and the Government for their submissions.
100.
In determining whether Mr. Al-Ghamdi’s detention is 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.11
101.
The Working Group wishes to recall that, in accordance with its methods of work, it
may take into account the information received in response to the joint urgent appeal referred
to by the Government.12
(a)
Category II
102.
The source submits that Mr. Al-Ghamdi’s charges relate solely to the exercise of his
right to freedom of expression and association and involve no other alleged actions beyond
his online expression, viewing of videos and engagement on social media. In its further
submissions, the source emphasizes that the Government’s response neither contests nor
denies that the action against Mr. Al-Ghamdi was solely due to the content that he had posted
and viewed on social media. Moreover, the source claims that the Government’s approach
that Mr. Al-Ghamdi’s expression amounts to terrorism and not peaceful criticism reinforces
the view that his detention and threat to life from the death penalty are a product of the
widespread crackdown on dissent, opposition and free speech in Saudi Arabia.
103.
The source asserts that those claims are demonstrated in the following: (a) the judicial
document issued on 26 June 2022 confirming the charges brought against him and
demonstrating that they were being brought as a result of the opinions and concerns that he
had expressed on social media, and the social media accounts that he had viewed and
followed; (b) the focus of the questions asked during interrogations after his arrest; and (c) the
judgment following trial, by which he was found guilty of the alleged charges and sentenced
to death. The Government submits that while free speech is protected in Saudi Arabia,
Mr. Al-Ghamdi’s actions constituted terrorist acts. The Working Group notes that article 19
of the Universal Declaration of Human Rights protects the right to freedom of expression,
which includes freedom to seek, receive and impart information and ideas through any media
regardless of frontiers. This right includes political discourse and commentary on public
affairs. It protects the holding and expression of opinions, including those that are critical of
or not in line with government policy. 13 Weighing the submissions of both parties, the
Working Group considers that Mr. Al-Ghamdi’s conduct fell within the right to freedom of
opinion and expression, protected under article 19 of the Universal Declaration of Human
Rights, and that he was detained for peacefully exercising those rights through his posts on
social media and the social media accounts that he had viewed and followed.
104.
According to the source, following the adoption in 2014 of counter-terrorism
legislation, a repressive arrest campaign has reportedly targeted citizens and activists on
charges related to freedom of opinion and expression. While the Government submits that all
laws in Saudi Arabia are formulated with sufficient precision and clarity, the Working Group
recalls that the Counter-Terrorism and Financing of Terrorism Act, under which
Mr. Al-Ghamdi was charged, lacks legal certainty. The Working Group has observed that the
Act has been regularly used to criminalize a wide spectrum of acts falling within the rights
to freedom of opinion, expression, peaceful assembly and association, as well as freedom of
thought, conscience and religion, enshrined in the Universal Declaration of Human Rights.
The Working Group considers that charges and convictions under the provisions of the Act
11 A/HRC/19/57, para. 68.
12 See, for example, opinions No. 48/2016 and No. 50/2022.
13 Opinions No. 79/2017, para. 55; and No. 8/2019, para. 55.
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13
that allow the criminalization of peaceful expression, enable arbitrary interpretation and make
it difficult for citizens to determine how to act in order to comply with the law cannot be
regarded as consistent with the Universal Declaration of Human Rights.14
105.
The Working Group concurs with the observation of the Special Rapporteur on the
promotion and protection of human rights and fundamental freedoms while countering
terrorism that the 2014 counter-terrorism legislation fails to comply with international human
rights standards of legal certainty, and that, contrary to basic international human rights
standards, article 1 of that legislation has enabled the criminalization of a wide spectrum of
acts of peaceful expression, which are viewed by the authorities as endangering “national
unity” or undermining “the reputation or position of the State”.15 The Working Group notes
that these concerns have not been addressed in the Counter-Terrorism and Financing of
Terrorism Act of 2017.
106.
Based on the foregoing, the Working Group concludes that the deprivation of liberty
of Mr. Al-Ghamdi is arbitrary, in violation of article 19 of the Universal Declaration of
Human Rights, falling within category II.
(b)
Category III
107.
Given its finding that the deprivation of liberty of Mr. Al-Ghamdi is arbitrary under
category II, the Working Group wishes to emphasize that in such circumstances no trial
should take place. However, as his first-instance trial has taken place, the Working Group
will now consider whether the alleged violations of the right to a fair trial and due process
were grave enough to give his deprivation of liberty an arbitrary character, such that it falls
within category III.
108.
The source submits that Mr. Al-Ghamdi was not afforded access to a lawyer during
interrogations while in solitary confinement and incommunicado detention for the four
months following his arrest in June 2022. He was provided with a State-appointed lawyer in
December 2022 who, for fear of serious consequences as other lawyers and a former judge
had had their licence revoked, reportedly refused to recognize Mr. Al-Ghamdi’s diagnosed
mental health conditions or the possibility that these diagnoses might assist in his defence.
His family was thus left responsible for finding him a replacement lawyer, which was
difficult because many of the lawyers approached refused for fear of reprisals.
Mr. Al-Ghamdi was therefore left without legal representation from March to May 2023,
until his case was referred to the Specialized Criminal Court, after which he was not permitted
regular access to his lawyer.
109.
The Government submits that Mr. Al-Ghamdi was informed of his right to legal
assistance at the investigative and trial stages, that he engaged a lawyer for his defence and
representation at the expense of the State, that he met his lawyer regularly at his place of
detention, and that the necessary facilities and adequate time were provided for his lawyer to
prepare the defence.
110.
The source, in its further submissions, argues that merely reading out and notifying a
detainee of theoretical rights, including the right to legal assistance, is not enough if the
reality of their circumstances makes access to these protections impossible. The source notes
that the Government does not mention the date on which Mr. Al-Ghamdi was provided with
legal representation at the expense of the State. According to the source, it was in December
2022, at least six months after Mr. Al-Ghamdi’s arrest. Furthermore, the source submits that
the Government’s response provides no details on when Mr. Al-Ghamdi was able to meet his
lawyer, or for how long, in which detention facility and in what location within the facility.
111.
As the Working Group has previously observed, all persons deprived of their liberty
have the right to legal assistance by counsel of their choice, at any time during their detention,
including immediately after their apprehension, and such access must be provided without
14 See opinions No. 46/2011 and No. 45/2019, and A/HRC/41/7, paras. 38.73 and 38.171.
15 Opinion No. 63/2017, para. 62.
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delay.16 The Working Group notes that Mr. Al-Ghamdi was deprived of access to legal
counsel of his choice while detained incommunicado and in solitary confinement. As such,
the Government failed to respect his 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 as established by law, in accordance with
articles 3, 9, 10 and 11 (1) of the Universal Declaration of Human Rights. The Working
Group considers that this violation substantially undermined his capacity to defend himself
in any subsequent judicial proceedings. The Working Group therefore finds violations of
articles 10 and 11 (1) of the Universal Declaration of Human Rights, and of principles 15, 17
and 18 of the Body of Principles, rule 61 of the Nelson Mandela Rules, 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. Moreover, as Mr. Al-Ghamdi is facing the death penalty, these violations are
exacerbated because in cases involving the death penalty effective assistance by counsel at
all stages of the trial is axiomatic.
112.
The source claims Mr. Al-Ghamdi experienced other violations of the right to a fair
trial and due process. It submits that Mr. Al-Ghamdi’s restricted consultation and
communication with a lawyer during his detention and interrogations and, upon instruction,
his lack of regular access to his lawyer detrimentally affected his ability to prepare and
present a defence. The limitations on his lawyer’s ability to call witnesses, submit medical
reports and request a medical referral during the trial proceedings equally affected the
presentation of a defence case for Mr. Al-Ghamdi, in violation of his due process and fair
trial rights. The Government makes a general submission that Mr. Al-Ghamdi was afforded
a fair and open trial in which all his rights were protected. Noting the source’s detailed
submissions, the Working Group finds that Mr. Al-Ghamdi’s right to equality of arms, to
adequate time to prepare a defence and to a fair hearing, under articles 10 and 11 (1) of the
Universal Declaration of Human Rights, were violated.
113.
The Government notes that the initial judgment against Mr. Al-Ghamdi was based on
sufficient evidence presented in court, including the individual’s confessions. The Working
Group has already established that Mr. Al-Ghamdi was held in solitary confinement and
incommunicado and interrogated without a lawyer. As the Working Group has stated
previously, confessions made in the absence of legal representation are not admissible as
evidence in criminal proceedings.17 Furthermore, the admission into evidence of a statement
allegedly obtained through torture or ill-treatment renders the entire proceedings unfair,
regardless of whether other evidence was available to support the verdict.18 The burden is on
the Government to prove that the statements were given freely,19 but it has not done so.
114.
Subsequently, the Government failed to respect Mr. Al-Ghamdi’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 as
established by law, with all the guarantees necessary for his defence, in accordance with
articles 3, 9, 10 and 11 (1) of the Universal Declaration of Human Rights.
115.
Referring to various violations of the right to a fair trial and due process, the source
submits that Mr. Al-Ghamdi’s right to a fair trial has been violated as he did not have access
to an independent and impartial tribunal in the Specialized Criminal Court. The Government
submits that the Specialized Criminal Court is an independent and impartial court, which
provided Mr. Al-Ghamdi with a fair and open trial. In its further submissions, the source
notes that the Specialized Criminal Court had adopted a well-documented pattern of targeting
and prosecuting individuals expressing opinions or criticisms, and that the Government did
16 See principle 9 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. Opinions
No. 63/2017, para. 70; No. 93/2017, para. 52; and No. 86/2020, para. 78. See also CAT/C/SAU/CO/2
and CAT/C/SAU/CO/2/Corr.1, paras. 14 and 15.
17 A/HRC/45/16, para. 53. See also opinions No. 1/2014, para. 22, and No. 41/2020, para. 70; and
E/CN.4/2003/68, para. 26 (e).
18 Opinion No. 73/2019, para. 91.
19 Opinion No. 41/2020, para. 70.
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15
not directly reply to any of the allegations about the concerns raised regarding the Specialized
Criminal Court, including that it kept the identity of the judges confidential, refused to allow
Mr. Al-Ghamdi’s family to attend the sentencing session and refused to allow Mr. Al-Ghamdi
to challenge the accuracy of the alleged statements for which he was charged.
116.
The Working Group recalls its earlier jurisprudence in which it has established that
the Specialized Criminal Court is insufficiently independent of the Ministry of the Interior,20
a concern shared by the Committee against Torture.21 The Working Group further notes the
assessment of the former Special Rapporteur on the promotion and protection of human rights
and fundamental freedoms while countering terrorism that governmental reorganization has
placed the Ministry’s investigatory powers directly under the authority of the public
prosecution service and the Presidency of State Security, both of which report directly to the
King, and that concerns regarding the lack of independence of the Specialized Criminal Court
therefore remain undiminished.22
117.
The Working Group therefore remains concerned about the independence and
impartiality of the Specialized Criminal Court and the extent to which the presumption of
innocence and the guarantees necessary for defence are maintained. The trial before the Court
thus contravened article 10 of the Universal Declaration of Human Rights. The Working
Group refers the present case to the Special Rapporteur on the independence of judges and
lawyers.
118.
The source submits that Mr. Al-Ghamdi’s right of access to his family has not been
respected, leading to further violations of his right to a fair trial and due process. The
Government submits that his rights to regular visits and communication have been respected,
and it states the number of telephone calls and general and private visits that he received. The
source, in its further submissions, notes that the Government in its response did not provide
information on the range of communications or the intervals in between them, and that the
assertion that Mr. Al-Ghamdi had regular communication therefore remains unsupported.
119.
Considering the source’s detailed submissions, the Working Group finds a denial of
Mr. Al-Ghamdi’s due process rights to be visited by and correspond with his family and to
be given adequate opportunity for contact with the outside world, subject to reasonable
conditions and restrictions as specified by law or lawful regulations, in accordance with
principles 15 and 19 of the Body of Principles and rules 43 (3), 58 and 68 of the Nelson
Mandela Rules.23 In particular, it notes his reported transfer to a prison 945 kilometres from
his family, thus encumbering regular family visits. Absent a response from the Government
on this matter, the Working Group is of the view that this transfer has denied him the
protection of rule 59 of the Nelson Mandela Rules, which requires that prisoners be allocated,
to the extent possible, to prisons close to their homes. Prompt and regular access to family,
and to independent medical personnel and lawyers, is an essential and necessary safeguard
for the prevention of torture and arbitrary detention. 24 The denial of access to and
communication with family during the first four months of Mr. Al-Ghamdi’s detention while
in solitary confinement resulted in his family being unable to assist him earlier with
instructing a suitable lawyer.
120.
The source submits that for the first four months of his detention following his arrest
on 11 June 2022, Mr. Al-Ghamdi was held in solitary confinement and incommunicado, was
interrogated and was not given access to a lawyer. The Government does not deny this
allegation and explains that under the Counter-Terrorism and Financing of Terrorism Act,
under which Mr. Al-Ghamdi was arrested, the investigative authority has the right to prevent
accused persons from contacting others for a specific period of time in exceptional
circumstances during investigations. Measures include solitary confinement for a period not
exceeding 90 days if required by the investigative authority. The source, in its further
submissions, states that the Government provides no explanation as to why Mr. Al-Ghamdi’s
solitary confinement was required as an exceptional necessity of the investigation. Moreover,
20 Opinions No. 10/2018, para. 73; No. 27/2023, paras. 102–104; and No. 56/2023, para. 108.
21 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 17.
22 A/HRC/40/52/Add.2, para. 47.
23 Opinions No. 35/2018, para. 39, and No. 44/2019, paras. 74 and 75.
24 Opinion No. 84/2020, para. 70.
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in holding Mr. Al-Ghamdi in solitary confinement for four months, the Government exceeded
the maximum period of 90 days outlined in its own law.
121.
With respect to Mr. Al-Ghamdi’s four-month solitary confinement, the Working
Group recalls that the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment has deemed that solitary confinement in excess of 15 days is
prolonged, because at that point some of the harmful psychological effects of isolation can
become irreversible.25 The Working Group notes that, in accordance with rule 45 of the
Nelson Mandela Rules, the imposition of solitary confinement must be accompanied by
certain safeguards. The Government has not demonstrated that any safeguards were put in
place or justified its use of solitary confinement, which is a measure of last resort, nor has it
explained why Mr. Al-Ghamdi was in solitary confinement for four months, in violation of
domestic legislation.
122.
The Government submits that it treats torture as a criminal offence, punishable by law.
The source notes that the Government simply refers to the existence of legal safeguards
without providing any information to dispute the source’s submissions that Mr. Al-Ghamdi
has been subjected to cruel, inhuman and degrading treatment and, potentially, psychological
torture, including solitary confinement.
123.
According to the source, Mr. Al-Ghamdi has been subjected to extreme emotional and
psychological pressure and suffering by being held in solitary confinement, without
explanation, for the first four months of his detention, while also being denied a lawyer and
communication with his family; being denied a lawyer for large periods of his detention; and
being denied medical care and medication, which has resulted in a deterioration of his health.
The Government submits that he is in good health, has visited several medical clinics and has
been provided with the necessary medication and regular follow-up checks. The source, in
its further submission, states that the Government’s mere assertions are not sufficient to
demonstrate that Mr. Al-Ghamdi was actually provided these services.
124.
The Working Group recalls that the denial of medical care can constitute a form of
torture and cruel and inhuman treatment.26 Noting the severity of the allegations, the Working
Group finds that the violations linked to Mr. Al-Ghamdi’s conditions of detention and lack
of medical care significantly undermined his ability to defend himself properly. The Working
Group has consistently concluded that torture or other forms of ill-treatment or punishment
that make it impossible for the person concerned to prepare an adequate defence before the
judicial proceedings amount to a violation of the person’s right to a fair trial.27
125.
The Working Group concludes that the breaches of Mr. Al-Ghamdi’s right to a fair
trial and due process are of such gravity as to give his deprivation of liberty an arbitrary
character, falling within category III.
(c)
Concluding remarks
126.
While the Government maintains that Mr. Al-Ghamdi is in good health, the Working
Group is concerned about the numerous health conditions reported by the source, including
his mental health conditions. The Working Group is obliged to remind the Government of its
obligations under article 25 of the Universal Declaration of Human Rights and rules 1, 24,
27 and 118 of the Nelson Mandela Rules, and that all persons deprived of their liberty must
be treated with humanity and with respect for the inherent dignity of the human person.28
Such treatment includes being allowed to enjoy the same standards of health care as those
available in the community.
127.
In its 30-year history, the Working Group has found the Government to be in violation
of its international human rights obligations in more than 75 cases.29 The Working Group
reiterates its concern that this indicates a widespread or systemic problem with arbitrary
detention in Saudi Arabia, which amounts to a serious violation of international law. The
25 A/66/268, paras. 26 and 61. See also A/63/175, para. 56.
26 A/HRC/38/36, para. 18, and opinion No. 20/2022, para. 104.
27 Opinions No. 32/2019, para. 42; No. 59/2019, para. 69; and No. 65/2022, para. 117.
28 Opinion No. 26/2017, para. 66.
29 See, for example, opinions No. 55/2023 and No. 56/2023.
A/HRC/WGAD/2024/10
GE.24-08446
17
Working Group recalls that under certain circumstances, widespread or systematic
imprisonment or other severe deprivation of liberty in violation of the rules of international
law may constitute a crime against humanity.30
128.
The Working Group welcomes the voluntary pledges pursuant to General Assembly
resolution 60/251 concerning the Human Rights Council by Saudi Arabia.31 In particular, the
Working Group lauds the expressed willingness of the Government to cooperate with the
Council and its various mechanisms, including the special procedures. In the light of this and
recalling its request for a country visit, reiterated on 24 August 2021 and 4 February 2022,
the Working Group would welcome the opportunity, at the Government’s earliest
convenience, to conduct a visit to Saudi Arabia in order to engage with the Government in a
constructive manner and to offer its assistance in addressing its serious concerns regarding
instances of arbitrary deprivation of liberty.
3.
Disposition
129.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Muhammad al-Ghamdi, being in contravention of
articles 3, 9, 10, 11 and 19 of the Universal Declaration of Human Rights, is arbitrary
and falls within categories II and III.
130.
The Working Group requests the Government of Saudi Arabia to take the steps
necessary to remedy the situation of 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.
131.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Al-Ghamdi immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
132.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Al-Ghamdi and to take appropriate measures against those responsible for the violation
of his rights.
133.
The Working Group requests the Government to bring its laws, particularly the
Counter-Terrorism and Financing of Terrorism Act, into conformity with the
recommendations made in the present opinion and with the commitments made by Saudi
Arabia under international human rights law.
134.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the independence of judges and lawyers for
appropriate action.
135.
The Working Group recommends that the Government accede to the International
Covenant on Civil and Political Rights.
136.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
137.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Al-Ghamdi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Al-Ghamdi;
30 A/HRC/13/42, para. 30. See also opinions No. 37/2011, para. 15, and No. 51/2017, para. 57.
31 See A/75/377.
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18
GE.24-08446
(c)
Whether an investigation has been conducted into the violation of
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.
138.
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.
139.
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 of any failure to take action.
140.
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.32
[Adopted on 19 March 2024]
32 Human Rights Council resolution 51/8, paras. 6 and 9.