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.24-10133 (E) 200924 200924
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. 26/2024 concerning Saud bin Mohammed bin Ali al-Faraj
(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 10 January 2024 the Working Group
transmitted to the Government of Saudi Arabia a communication concerning Saud bin
Mohammed bin Ali al-Faraj. The Government replied to the communication on 29 February
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/2024/26
General Assembly
Distr.: General
20 September 2024
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Saud bin Mohammed bin Ali al-Faraj, born in 1980, is a Saudi Arabian businessman.
He usually resides in Al-Awamiyah, Saudi Arabia.
(i)
Context
5.
In June and July 2017, two institutions – the public prosecution service and the
Presidency of State Security – were created in Saudi Arabia. Both are under the direct control
of the King.
6.
The creation of the Presidency of State Security has allowed the Government to
centralize all activities related to State security. The decree that created the Presidency of
State Security placed the General Directorate of Investigation and all other security
institutions under the direct authority of the Presidency, which itself directly reports to the
King.
7.
The public prosecution service was also brought under the direct control of the King,
replacing the institutions that were previously under the control of the Minister of the Interior.
Allegedly, this has enabled the King and the Crown Prince to consolidate their authority over
these institutions while providing greater direction for and oversight over the operations of
the institutions.
8.
The establishment of the two institutions has allowed the authorities to arrest
individuals, including peaceful dissidents and human rights defenders, deemed to be a threat
to or critical of the Crown Prince’s policies. In those cases, individuals, once arrested, are
scheduled to appear before the Specialized Criminal Court. The Court was established in
2008 to try crimes of terrorism exclusively. Since then, it has been influenced by the
executive branch, rendering it a tool for prosecuting critics on false terrorism charges.
(ii)
Arrest and detention
9.
In 2011 and 2012, Mr. Al-Faraj participated in demonstrations against the treatment
of the Shia minority in Qatif. He also attended the funerals of individuals allegedly killed by
government forces during those protests.
10.
In early November 2019, Mr. Al-Faraj was requested to collaborate with the
government authorities. However, he politely refused the request.
11.
Two weeks later, government forces raided one of Mr. Al-Faraj’s company’s
warehouses and confiscated construction equipment.
12.
At around 3 a.m. on 2 December 2019, Mr. Al-Faraj and his family were returning
home. When they arrived in their neighbourhood, they saw tanks posted in their street. All of
the doors of their home were shot at, and the house was searched. The investigative
authorities who conducted the search wrote a report stating that they had found explosives
and heavy weaponry in the house, but the statements were not corroborated with material
evidence.
13.
Mr. Al-Faraj and his family went to one of his company’s warehouses on Dweij street.
A few hours later, the warehouse was raided by security forces, and Mr. Al-Faraj was brutally
beaten and arrested. The squad that arrested him did not present an arrest warrant and did not
tell him the reasons for his arrest.
14.
Mr. Al-Faraj was blindfolded and put in a car. The squad stopped at the closest
“investigation centre”. There, unidentified individuals forced Mr. Al-Faraj to press his
fingerprints on a piece of paper, but did not disclose what was written on the paper.
15.
The squad transferred him immediately to the general prison in Dammam where he
was handed over to a person introduced as an investigator for the case. Outside of the prison,
the investigator removed Mr. Al-Faraj’s blindfold and told him to look inside the vehicle next
to him; Mr. Al-Faraj saw a relative in the vehicle. The investigator then told Mr. Al-Faraj
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that they had arrested the relative, and that if he wanted to protect her, he would have to
comply with everything asked of him.
16.
The next day, the same investigator instructed Mr. Al-Faraj to write a false confession.
However, Mr. Al-Faraj refused and was therefore subjected to severe acts of torture. This led
to his transfer, in a wheelchair, from the investigation area to the prison hospital. The torture
was documented by the investigators in audio and video recordings.
17.
Once he had recovered, Mr. Al-Faraj was subjected to even worse torture. He was
stripped of his clothing and sexually harassed by the investigators, which led to another
transfer to the prison hospital. While there, the case investigator threatened that the relative
of Mr. Al-Faraj who had been detained would be subjected to collective sexual abuse if he
did not write the forced confession.
18.
Mr. Al-Faraj agreed, but he wrote between the lines that his confession was not true.
As a result, the investigators beat him again, which led him to be taken to the prison hospital
again. Consequently, he wrote the confession as demanded.
19.
Mr. Al-Faraj submitted three oral complaints, alleging torture and abuse by
investigators, to a member of the public prosecution service – one on 7 December 2020, one
on 24 August 2021 and one 20 December 2021. He insisted, to no avail, that the prosecutor
provide him with proof that the complaints had been duly filed.
20.
Mr. Al-Faraj was kept in solitary confinement from the date of his arrest on
2 December 2019 until 8 August 2021 and was deprived of any contact with his family and
friends. Therefore, he was detained incommunicado. On 7 June 2020, a relative sent a letter
to the Crown Prince, the Ministry of Justice and the parliament stating that he had not heard
from Mr. Al-Faraj since the arrest.
21.
During his solitary confinement, Mr. Al-Faraj was allowed only one call to his family,
on 14 May 2021, which lasted a few minutes and during which he learned that the relative
had been released.
22.
Once Mr. Al-Faraj was taken out of solitary confinement, he was allowed to
communicate with his family. The prison administration placed him in a cell without any
Arabic-speaking cellmates and refused to transfer him to a cell with men who spoke his
language.
23.
On 22 June 2021, he was transferred to another prison, without prior notification. A
few days later, he was brought, for the first time, before a judge and a prosecutor, who listed
the charges against him without the presence of a lawyer.
24.
Mr. Al-Faraj was charged with the following: joining a terrorist organization led by
terrorist organizations outside Saudi Arabia; aiming to carry out terrorist acts inside Saudi
Arabia in order to destabilize security and spread chaos, unrest, and shedding “infallible
blood”; receiving training on military weapons and explosives, on methods of manufacturing
them and on martial arts inside a third country; creating a terrorist entity inside Saudi Arabia,
aimed at killing security personnel and destabilizing the country’s security and stability and
assuming its leadership, and providing shelter, medicine, weapons and explosives for the
members of the terrorist cell; recruiting a number of terrorists to work for the cell;
manufacturing weapons and explosives and using them to target members of security forces,
their vehicles and security headquarters; sending a number of terrorists who had joined the
terrorist cell to a third country to receive military training; escaping from his home during a
raid and hiding in an abandoned house, and recruiting a number of terrorists to join the cell
and to smuggle him out of Saudi Arabia; monitoring, planning, and controlling roads to target
members of security forces, checkpoints and security vehicles, and monitoring security
movements in Qatif Governorate to provide terrorists with information to help them escape
from members of security forces; targeting armored vehicles of the security forces stationed
in Al-Awamiyah and firing explosive shells, one of which killed a member of the security
forces and led to casualties among citizens and residents and the destruction of public and
private property; possessing heavy weaponry; falsifying national identity cards; and calling
for, participating in, promoting and inciting sit-ins, demonstrations, gatherings and marches
in Qatif Governorate, affecting the stability of Saudi Arabia and intended to sow division and
destabilize the security situation. The charges were filed pursuant to the counter-terrorism
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and financing of terrorism act, the Explosives and Firecrackers Act, the Weapons and
Ammunition Act, the act on anti-forgery offences and the anti-cybercrime act.
25.
Mr. Al-Faraj was brought back to Dammam prison after being presented before the
prosecutor and the judge.
26.
On 3 October and 17 November 2021, Mr. Al-Faraj was brought before an
unidentified judicial authority; he was not provided with a lawyer for the sessions. He
explained the conditions of his arrest and torture. He also submitted a written statement to
that judicial authority, maintaining his innocence and detailing the treatment he had endured,
and requested that the statement be included in his case file; it was not included.
27.
The prison did not approve Mr. Al-Faraj’s legal representative until 22 December
2021, although the Specialized Criminal Court had appointed the lawyer to Mr. Al-Faraj six
months prior. Furthermore, the only time the lawyer was allowed to visit Mr. Al-Faraj in
prison was on 27 January 2022. Since then, Mr. Al-Faraj has been deprived of any contact
with his lawyer.
28.
On 3 November 2022, the Specialized Criminal Court sentenced Mr. Al-Faraj to death.
During the trial, he appeared before the Court and reported everything that had happened to
him, including that his relative had been arrested in order to blackmail him. Moreover,
Mr. Al-Faraj stated that the relative had been forced to write a statement incriminating him.
The relative was told that, if the statement was not written, another relative would be arrested.
Mr. Al-Faraj stated to the Court that he had been subjected to torture, and notified the Court
about the existence of videos of his torture and his health complications owing to the torture.
He mentioned the three complaints he had made to the public prosecutor regarding his torture
and asked the prosecutor to whom he had communicated the complaints verbally to testify
during the trial, but the prosecutor refused.
29.
The authorities presented as evidence against Mr. Al-Faraj reports from investigators
regarding searches on his “farm”, which stated that explosives and heavy weaponry had been
found there. Mr. Al-Faraj stated during the trial that he did not own a farm and that the reports
were not valid.
30.
Mr. Al-Faraj requested that the Court allow the audio and video documentation from
Dammam prison to be presented in order to prove the physical torture he had been subjected
to, and the medical reports from the prison’s hospital, in order to prove that he had been
transferred there because of the torture. He also requested that the Court invalidate the forced
confession, and the reports of the investigators, as they did not reflect the truth. However, the
Court judges did not consider Mr. Al-Faraj’s defence arguments and based their decision on
his forced confession and the reports on the house and farm searches. The judges stated that
Mr. Al-Faraj’s guilt was partially proved by his wish to invalidate the confession.
31.
On 6 December 2022, Mr. Al-Faraj’s lawyer filed an appeal before the Specialized
Criminal Court of Appeal. The appeal proceedings took place before that Court on 31 January
2023. Mr. Al-Faraj again described everything that had happened to him. However, the
judges of the Specialized Criminal Court of Appeal did not consider any of his claims and
upheld the death penalty.
32.
Mr. Al-Faraj’s case has been pending with the Supreme Court since 15 March 2023,
and he is still currently being held in Dammam prison.
33.
Mr. Al-Faraj wrote six letters to the judges of the Specialized Criminal Court and the
Specialized Criminal Court of Appeal, dated 17 November 2021, 13 March 2022, 30 May
2022, 7 September 2022, 9 October 2022 and 6 December 2022. In the letters, he explained
his situation, maintained his innocence and asked the judges of the two courts to show mercy.
He also sent a letter to the Human Rights Commission of Saudi Arabia. The letters remain
unanswered.
(iii)
Legal analysis
34.
The source argues that the arrest and detention of Mr. Al-Faraj are arbitrary under
categories I, II, III and V of the Working Group.
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a.
Category I
35.
Mr. Al-Faraj was arrested by armed State forces on 2 December 2019 without an arrest
warrant and without being informed of the reasons for his arrest.
36.
The Working Group has stated that it is not sufficient for there to be a law authorizing
the arrest. Authorities must invoke that legal basis and apply it to the circumstances through
an arrest warrant.2
37.
Even if the Government alleges that Mr. Al-Faraj was presented with an arrest warrant,
the Presidency of State Security – the issuing authority – lacks the independence and
oversight necessary to issue such warrants. The Working Group has found that certain State
bodies in Saudi Arabia, including agencies run by the Ministry of the Interior or the General
Directorate of Investigation, do not meet this requirement.3
38.
The Government undertook some restructuring in 2017, creating the Presidency of
State Security. It is the sole issuing authority of arrest warrants for individuals suspected of
terrorism crimes. Similar to the body that was responsible for State security prior to the
restructuring, the Presidency of State Security lacks any judicial oversight and has been
routinely used as a tool to repress rights and freedoms and censure dissent.
39.
The Working Group has found that many of the investigative duties that used to be
the responsibility of the Ministry of the Interior have simply changed hands and now fall
under the public prosecution service and the Presidency of State Security, both reporting
directly to the King. 4 Thus, the Presidency of State Security lacks the competence,
impartiality and judicial oversight necessary to issue arrest warrants.
40.
After his arrest on 2 December 2019, Mr. Al-Faraj was placed in solitary confinement
until 8 August 2021. During that time, he was not allowed to communicate with an attorney
or his family. The only exception was one brief phone call to his family on 14 May 2021.
41.
Mr. Al-Faraj was put in a situation amounting to incommunicado detention. This, in
turn, violated his right to challenge the lawfulness of his detention before a court under
article 8 of the Universal Declaration of Human Rights.5
42.
As Mr. Al-Faraj was never allowed to challenge the legality of his detention before a
court, there is a violation of his right to habeas corpus, rendering his detention arbitrary.6
43.
Under Saudi law, there is no right to submit complaints directly to judicial authorities
or to challenge the legality of an individual’s detention before a court of law.
44.
After Mr. Al-Faraj’s arrest, he was not promptly taken before a judicial authority and
was not given the opportunity to challenge his detention. He appeared before a judge for the
first time in June 2021, a year and a half after his arrest.
45.
The source concludes that Mr. Al-Faraj’s detention was in violation of articles 3 and
9 of the Universal Declaration of Human Rights, and principles 11, 32 (1) and 37 of the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
46.
Mr. Al-Faraj was charged and sentenced on the basis of several articles in the 2017
counter-terrorism and financing of terrorism act and the 2006 anti-cybercrime act. The vague
and overly broad provisions in those laws lack legal certainty and make it impossible to
invoke any legal basis to justify Mr. Al-Faraj’s deprivation of liberty.7
47.
The counter-terrorism law contains, in its article 1, a definition of “terrorist crime”
that is broad and vague and enables the criminalization of a wide spectrum of acts of peaceful
2 See, e.g., opinion No. 9/2018.
3 Opinion No. 62/2022.
4 Opinion No. 71/2019.
5 See opinion No. 79/2017.
6 A/HRC/30/37, para. 2.
7 See also opinion No. 71/2019.
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expression and opinion, according to United Nations experts.8 The same concerns apply to
other provisions of the law invoked against Mr. Al-Faraj that stem from the imprecise
definition under article 1.
48.
The Working Group has expressed its concern about anti-terrorism laws in Saudi
Arabia9 and the broad and vague definition of cybercrime within the anti-cybercrime law.10
49.
Saudi Arabia does not have a written penal code and charges are determined in an
overly discretionary manner.
50.
The source concludes that the above-mentioned provisions lack legal certainty and are
contrary to articles 9 and 11 (2) of the Universal Declaration of Human Rights.
b.
Category II
51.
The source argues that Mr. Al-Faraj’s detention is arbitrary under category II, as it
results from the exercise of his right to freedom of conscience and of expression.
52.
In November 2019, Mr. Al-Faraj received a request from Government authorities,
which he politely refused. He was arrested, detained and sentenced following his refusal to
comply with orders of the government authorities. There is no other reason for Mr. Al-Faraj’s
arrest, as there is no credible evidence that shows that he ever took part in any terrorist activity
or owned any type of weapon or explosive, as claimed by the authorities. Mr. Al-Faraj’s
deprivation of liberty thus results from his right to freedom of conscience.
53.
Mr. Al-Faraj was charged for participating in protests against the State’s treatment of
the Shia minority and attending funerals of individuals killed by State authorities. While the
right to freedom of expression is not an absolute right and can be limited pursuant to
article 29 (2) of the Universal Declaration of Human Rights, participating in protests to
express discontent with the State’s actions against Shia minorities and chanting anti-State
slogans cannot reasonably be considered as posing threats to morality and public order. There
is no evidence of any violence or incitement to violence associated with Mr. Al-Faraj’s acts,
which is further evidence that the permissible restriction of the right clearly has not been met.
54.
Mr. Al-Faraj has been charged under counter-terrorism laws and recalls that the
Working Group has expressed its concern regarding the provisions of that legislation.11
55.
The source concludes that Mr. Al-Faraj’s detention is arbitrary and falls within
category II, in violation of articles 18, 19, 20 (1) and 21 (1) of the Universal Declaration of
Human Rights.
c.
Category III
56.
The source argues that Mr. Al-Faraj’s detention is arbitrary under category III.
57.
Since his arrest on 2 December 2019, Mr. Al-Faraj has not been granted appropriate
legal counsel. His lawyer was approved by the prison administration only on 22 December
2021, and allowed to visit him once, on 27 January 2022, more than two years after the arrest.
Thus, Mr. Al-Faraj’s access to legal counsel was unlawfully restricted. Mr. Al-Faraj was
brought before a judge and a prosecutor in June 2021, and also before a “judicial authority”
on 3 October 2021 and 17 November 2021. However, none of these hearings took place in
the presence of a lawyer. The Government has failed to respect Mr. Al-Faraj’s right to legal
assistance at all times, in violation of articles 3, 9, 10 and 11 (1) of the Universal Declaration
of Human Rights, which substantially undermined and compromised his ability to defend
himself.
8 See communication SAU 12/2020, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25726.
See also CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1.
9 See, e.g., opinion No. 10/2018.
10 See, e.g., opinion No. 71/2019.
11 See, e.g., opinion No. 92/2020.
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58.
Mr. Al-Faraj was placed in solitary confinement for 21 months, contrary to
rules 43 (1) (b) and 44 of the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules).
59.
Mr. Al-Faraj claimed during his trial and in his letters to various authorities that he
had been subjected to torture and that his confessions had been extracted under duress. None
of his claims were investigated or followed up. The Working Group has stated that, if persons
allege that their confessions were coerced it is for the judiciary to establish that they were not
obtained through the application of pressure of any kind.12 Most of the evidence mentioned
in the verdict is based on Mr. Al-Faraj’s forced confession. Any conviction based on
confessions obtained under torture constitutes a serious violation of the right to a fair trial.
The source concludes that this is contrary to principles 1, 6, 21 and 22 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
article 5 of the Universal Declaration of Human Rights, and articles 2, 15 and 16 (1) of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
60.
The Specialized Criminal Court and the Specialized Criminal Court of Appeal are not
competent to provide a fair trial in accordance with international standards and cannot be
considered as independent and impartial tribunals. While the Specialized Criminal Court
initially focused on allegations of political violence linked to Al-Qaida, that started to change
in 2010 and the Court has been increasingly used for the prosecution of human rights
defenders and political activists.
61.
The Committee against Torture has expressed its concerns about the Specialized
Criminal Court, noting that it has repeatedly refused to act on torture claims made by
defendants facing terrorism charges.13 The Working Group has found that the Court cannot
be considered an independent and impartial tribunal.14 The Court has suffered from undue
influence from the executive branch. Judges are appointed by the Supreme Judicial Council,
comprised of members appointed by the King, including the director of the public prosecution
service.
62.
The source concludes that Mr. Al-Faraj’s trial before the Specialized Criminal Court
and the Specialized Criminal Court of Appeal was not before independent courts, in violation
of article 10 of the Universal Declaration of Human Rights.
d.
Category V
63.
The source submits that Mr. Al-Faraj is part of the Shia minority in Saudi Arabia, and
that his deprivation of liberty and the death penalty imposed on him constitute discrimination,
rendering his detention arbitrary under category V.
64.
Sharqiyah is known to be home to the largest population of Shias in the country. In
2011, amid the wave of protests that took place across many Arab countries, activists from
the Shia minority in Sharqiyah organized demonstrations against the Government’s
discriminatory policies. Demonstrations began in February 2011, in Al-Awamiyah, with
individuals protesting the detention without charge of three individuals who had called for
Shia minority’s rights to be respected.
65.
The Government responded to the protests with repressive measures, mainly against
the Shia individuals suspected of taking part. Hundreds of individuals were arrested and
detained in relation to the protests, and many were subjected to torture or travel bans or
dismissed from their employment.
66.
Saudi Arabia has a long history of discrimination against the Shia religious minority
in Sharqiyah, particularly evident following the protest movement in 2011. The source recalls
12 Opinion No. 78/2019.
13 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 17.
14 See, e.g., opinions No. 22/2019 and No. 26/2019.
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the Working Group’s jurisprudence15 and the concerns expressed by the Committee on the
Elimination of Racial Discrimination16 in that regard.
67.
In March 2014, a decree issued by the Ministry of the Interior expanded the list of
activities considered terrorist crimes under the counter-terrorism and financing of terrorism
act to include calling for atheist thought and questioning the fundamental principles of Islam.
68.
The source concludes that Mr. Al-Faraj’s arrest, detention and death sentence are part
of a pattern of discrimination against members of the Shia minority, rendering his detention
arbitrary under category V.
(b)
Response from the Government
69.
On 10 January 2024, the Working Group transmitted the allegations from the source
to the Government of Saudi Arabia under its regular communication procedure, requesting a
reply by 11 March 2024. On 29 February 2024, the Government submitted its reply.
70.
The Government states that Mr. Al-Faraj was arrested on 5 Rabi‘ II A.H. 1441
(2 December A.D. 2019), pursuant to a valid warrant issued by a competent and independent
authority. He was immediately informed – on the day he was apprehended – of the reasons
for his arrest and detention. He was then charged and convicted for terrorist crimes under the
counter-terrorism and financing of terrorism act. The crimes he was charged with included
murdering a security officer by targeting security vehicles with explosive firearms; attempted
murder; firing weapons and guided projectiles at security personnel and their vehicles with
the intent to kill; throwing explosive grenades and firing at security headquarters and
checkpoints; collaborating with terrorists in killing security personnel through the detonation
of security vehicles using explosives and military projectiles; planting explosive devices;
establishing an armed terrorist entity under his leadership within the country with the aim of
killing security personnel; conducting terrorist operations to disrupt internal security; issuing
orders to individuals under his command to fire explosive firearms at security personnel in
Qatif, resulting in the martyrdom of several members of security forces and casualties among
citizens and residents; and receiving military training on weapons, explosives manufacturing
methods, combat techniques and communication devices from an armed terrorist entity
outside the country.
71.
The procedures and guarantees applied in Mr. Al-Faraj’s case were in line with
international standards for fair trial and due process. The judgments of the courts of first
instance and appeal are supported by sufficient evidence. The defendant objected to the ruling
and requested an appeal before the Supreme Court, under whose judicial consideration his
case currently remains.
72.
The death penalty is handed down for the most serious offences and within the
narrowest limits and is carried out only after all judicial procedures have concluded, in line
with fair trial and due process, consistent with the country’s international commitments under
international human rights law. The Government refers to Economic and Social Council
resolution 1984/50.
73.
The Government denies that the individual has been subjected to torture or any other
violations. Torture is considered a serious crime in Saudi Arabia and authorities take effective
measures, such as prison monitoring and judicial investigations, to prevent its commission
and to punish perpetrators. In the event of acknowledged violations of detainees’ rights, the
Government ensures the adoption of measures intended to redress the harm endured.
74.
The measures preventing an accused person from contacting others are subject to legal
restrictions. The counter-terrorism act ensures that solitary confinement is imposed only
under specific exceptional circumstances defined by law and for a specified duration. This is
done without violating the right to inform the accused’s relatives of the detention or the right
of defendants to communicate with their attorneys. Like other detainees and prisoners,
Mr. Al-Faraj is entitled to visitation and continuous and periodic communication. He has had
32 visits, the latest on 10 Rajab A.H. 1445 (22 January A.D. 2024), and 647 communications,
15 See, e.g., opinions No. 26/2019 and No. 56/2019.
16 CERD/C/SAU/CO/4-9.
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the latest on 9 Rajab A.H. 1445 (21 January A.D. 2024). He is continually allowed to meet
his legal representatives for consultation at his place of detention.
75.
Like other detainees and prisoners, Mr. Al-Faraj has received the medical care
necessary since his arrest. He maintains good health and mental well-being, regularly
undergoes consultations with specialized medical clinics where the necessary medications
are provided, and undergoes routine and regular follow-up checks.
76.
All laws in the country are formulated with sufficient precision and clarity, enabling
individuals to regulate their conduct accordingly. The counter-terrorism and financing of
terrorism act is aligned with all applicable international standards. The country reaffirms its
commitment to protecting and enhancing human rights through its application of the principle
of legality. Punishment is individual, and there is no crime or punishment except based on a
legal text, whether religious or legal.
77.
The country respects the right to freedom of opinion, expression and thought, ensuring
that every individual can exercise this right, provided that there is no transgression against
public order and society. This restriction is in line with relevant international standards,
including article 29 (2) of the Universal Declaration of Human Rights and article 19 of the
International Covenant on Civil and Political Rights. No detainees in the country are being
held for exercising their rights and freedoms. All citizens enjoy all their rights equally. They
practice their religious rituals and beliefs freely, without discrimination.
78.
The Human Rights Commission monitors the situation of Mr. Al-Faraj and verifies
the integrity of the procedures taken in his regard. There has been no evidence indicating any
violation of his rights.
79.
Regarding the allegations that there is no evidence of his involvement in terrorist acts,
the Government declares those allegations false and baseless. It appears to be an attempt by
the source to justify the terrorist crimes committed, portraying them as the exercise of
legitimate rights. The individual was apprehended only after credible evidence surfaced
regarding his involvement in serious terrorist crimes, contrary to the claims that his arrest
was due to his refusal to comply with government requests or orders. Moreover, no
government entity in the country sought his compliance with any orders or requests, which
the source did not clarify the nature of.
80.
The individual’s punishment for committing the terrorist crimes mentioned is not only
in accordance with the country’s commitment to the Universal Declaration of Human Rights,
but also stems from the country’s adherence to international instruments for combating
terrorist crime to which it has acceded and its commitment to relevant Security Council
resolutions. The Government expresses its hope that the Working Group will take into
account Security Council resolutions No. 1377 (2001), No. 1566 (2004) and No. 2178 (2014).
81.
On the day he was arrested, Mr. Al-Faraj was immediately informed of his legal rights.
He had the right to inform someone of his arrest. His acknowledgment of this was obtained
through his signature. He engaged six legal representatives, three at his expense and three at
the State’s expense, chosen by him on the basis of his request to the court, under articles 1, 4
and 139 of the Code of Criminal Procedure. His legal representatives were able to visit him
to discuss legal matters and provide legal advice.
82.
The court examined all the evidence presented against him, adhering to the country’s
international commitments, evaluating the evidence and facts and the crimes he was accused
of in a fair and individual manner. The judge based the judgment on the defendant’s
confessions and the evidence presented against him.
83.
The case was considered by an independent and impartial court, namely the
Specialized Criminal Court. The court was established by a decision of the Supreme Judicial
Council, which has the authority to establish courts and determine their territorial and
jurisdictional competence. The judicial procedures of the Specialized Criminal Court are the
same as those applied in other criminal courts pursuant to the act on the judiciary, the Code
of Criminal Procedure and the act on Sharia proceedings. Judges are appointed by royal
decree based on decisions issued by the Supreme Judicial Council, in accordance with
article 47 of the 2007 act on the judiciary.
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GE.24-10133
84.
The Government rejects the claims that the defendant was apprehended on the basis
of his belonging to the Shia minority and reiterates that he committed several terrorist crimes.
85.
The individual enjoys good health and his mental state is sound. All detainees in the
country’s prisons receive medical care, and regular check-ups at specialized medical clinics.
Essential medications are prescribed for them.
86.
Lastly, the Government reminds the Working Group to fully adhere to its working
methods and the Code of Conduct for Special Procedure Mandate Holders of the Human
Rights Council, in particular articles 6 (a)–(c), 9 (a), (d) and (e), 12 (a) and (b) and 13 (a) and
(b).
(c)
Further submissions from the source
87.
The source submits that the Government, in its response, merely denied the allegations,
while failing to demonstrate that Mr. Al-Faraj has been afforded any procedural guarantees.
Simply listing relevant laws does not demonstrate their proper application.
88.
The Government did not provide any information about the evidence upon which the
public prosecution service had based the indictment against him; it also failed to disprove the
allegation that Mr. Al-Faraj was subjected to physical and psychological torture to extort
confessions.
89.
The Government confirms that during the hearing before the Specialized Criminal
Court, Mr. Al-Faraj was informed of the charges by the sitting tribunal and given a copy of
the indictment issued by the public prosecution service. That was the only time the State
identified the authority that informed Mr. Al-Faraj of his charges. It is therefore fair to assume
that it was the first time he learned of the charges - not upon arrest - thus confirming the
allegation that he was informed of the charges only in June 2021, long after his arrest in
December 2019.
90.
As to the Government’s claims about the role of the Human Rights Commission in
guaranteeing Mr. Al-Faraj’s rights, there are strong reasons to affirm that the Commission
lacks the proper independence to carry out its activities efficiently.
2.
Discussion
91.
The Working Group thanks the source and the Government for their submissions.
92.
In determining whether the deprivation of liberty of Mr. Al-Faraj is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented 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.17
(a)
Category I
93.
The source submits that Mr. Al-Faraj was arrested without being presented with an
arrest warrant and without being informed of the reasons for this arrest. The Government
states that Mr. Al-Faraj was arrested on 5 Rabi‘ II A.H. 1441 (2 December A.D. 2019),
pursuant to a valid warrant issued by a competent and independent authority. It further adds
that he was informed immediately (the day he was apprehended) of the reasons for his arrest
and detention. His legal rights were explained to him, and he was asked to provide a signature
to acknowledge them. In an additional response, the source submits that the State’s response
does not specify the authority responsible for issuing the arrest warrant, the date of issue, the
arresting authority and the modalities of the arrest. Therefore, the Government has not
substantiated its claim that Mr. Al-Faraj was informed “immediately” of the reasons for his
arrest and of the charges.
94.
The Working Group has previously stated that, for a deprivation of liberty to have a
legal basis, it is not sufficient for there to be a law that authorizing the arrest. The authorities
17 A/HRC/19/57, para. 68.
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11
must invoke that legal basis and apply it to the circumstances of the case.18 This is typically
done through an arrest warrant or arrest order (or equivalent document).19 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.20
95.
In considering this issue, the Working Group observes that the Government has not
clarified whether the arrest warrant was shown to Mr. Al-Faraj at the time of his arrest. In
that connection, the Working Group notes the distinction between issuing an arrest warrant
and showing it to a suspect before the arrest. Considering the discrepancies regarding the
events reported by the parties, the Working Group must establish which version of the events
it finds most credible. The Working Group observes that while the source has provided a
detailed and coherent account, the Government provides limited information to confirm its
version of the events and only partially responds to the allegations made by the source.
96.
Considering the submissions of both parties, the Working Group finds that no warrant
was presented at the time of Mr. Al-Faraj’s arrest and that he was not provided with the
reasons for his arrest. For those reasons, the Working Group finds that his arrest violated
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. The Working Group has found in a series of recent cases relating to Saudi
Arabia that an arrest warrant was not presented at the time of the arrest, further bolstering the
credibility of the source’s claims.21
97.
The source submits that Mr. Al-Faraj was detained incommunicado and in solitary
confinement for 21 months – from his arrest on 2 December 2019 until 8 August 2021. The
Government emphasizes that its counter-terrorism act ensures that solitary confinement is
imposed only under specific exceptional circumstances defined by law and for a specified
duration and that Mr. Al-Faraj is entitled to visitation and has continuously had periodic
communication. In its further submissions, the source notes that while the State has shared
an overview of the number of visits and the date of the last visit, it has failed to provide the
dates of the other visits, to specify whether those visits took place when he was in solitary
confinement and to specify his detention facility.
98.
Considering the source’s detailed submissions, in contrast to the Government’s more
general response, the Working Group finds that Mr. Al-Faraj was denied his right to be
visited by and to 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 for
the Protection of All Persons under Any Form of Detention or Imprisonment and rules 43 (3),
58 and 68 of the Nelson Mandela Rules. Prompt and regular access to family members, and
to independent medical personnel and lawyers, is an essential and necessary safeguard for
the prevention of torture and for protection against arbitrary detention and infringement of
personal security.22
99.
The source further submits that Mr. Al-Faraj was denied the right to challenge the
lawfulness of his detention (habeas corpus) and the right to be brought promptly before a
judge. Following his arrest on 2 December 2019, Mr. Al-Faraj was reportedly brought before
a judge in June 2021. In the absence of a specific government response on those allegations,
the Working Group considers that Mr. Al-Faraj was denied the right to take proceedings
before a court to challenge the legality of his detention, in violation of articles 3 and 9 of the
Universal Declaration of Human Rights and principles 11, 32 and 37 of the Body of
18 Opinion No. 59/2019, para. 46.
19 Opinion No. 30/2018, para. 39. In cases of arrests made in flagrante delicto, the opportunity to obtain
a warrant will typically not be available.
20 Human Rights Committee, general comment No. 35 (2014), para. 25. See also opinions No. 30/2017,
paras. 58 and 59; and No. 85/2021, para. 69.
21 Opinions No. 62/2022, No. 84/2022, No. 17/2023, No. 26/2023, No. 27/2023, No. 55/2023 and
No. 56/2023.
22 Human Rights Committee, general comment No. 35 (2014), para. 58. See also opinion No. 84/2020,
para. 70.
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Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.23
Judicial oversight of detention is a fundamental safeguard of personal liberty and is essential
in ensuring that detention has a legal basis.24 Given that Mr. Al-Faraj had no opportunity to
challenge his detention, his right to an effective remedy under article 8 of the Universal
Declaration of Human Rights was violated. The Working Group is concerned by the source’s
submission that there is no right to submit complaints directly to judicial authorities or to
challenge the legality of an individual’s detention before a court of law under Saudi law.
100.
Reportedly, Mr. Al-Faraj was charged and sentenced on the basis of several articles
contained in the 2017 counter-terrorism and terrorism financing act and the anti-cybercrime
act. Allegedly, the vague and overly broad provisions in those laws lack legal certainty and
make it impossible to invoke any legal basis to justify Mr. Al-Faraj’s deprivation of liberty.
The source notes that article 1 of the counter-terrorism law contains a broad and vague
definition of a terrorist crime, allowing for the criminalization of a wide range of peaceful
expression and opinion. The Government submits that all laws in the country are formulated
with sufficient precision and clarity, enabling individuals to regulate their conduct
accordingly and that the counter-terrorism and terrorism financing act is aligned with relevant
international standards. The Government does not specifically comment on the lack of clarity
of the anti-cybercrime law.
101.
As the Working Group has previously stated, vaguely and broadly worded provisions,
such as the anti-cybercrime law and the 2017 counter-terrorism law, which cannot qualify as
lex certa, violate the principle of legality in article 11 (2) of the Universal Declaration of
Human Rights.25 The Working Group reiterates this finding in relation to the application of
those provisions in the case of Mr. Al-Faraj. Several special procedure mandate holders have
expressed their concerns about the definition of “terrorist crime” as contained in article 1 of
the counter-terrorism law, as it does not restrict the acts it criminalizes to violent acts.26
Similar concerns were raised by the Committee against Torture.27
102.
For the above-mentioned reasons, the Working Group finds that Mr. Al-Faraj’s
detention does not have any legal basis and violates articles 3, 9, and 11 (2) of the Universal
Declaration of Human Rights.
(b)
Category II
103.
Allegedly, Mr. Al-Faraj’s detention is arbitrary under category II as it results from the
exercise of his right to freedom of conscience and freedom of expression under articles 18
and 19 of the Universal Declaration of Human Rights. The source argues that there is no
other reason for Mr. Al-Faraj’s arrest, as there is no credible evidence that shows he ever
took part in any terrorist activity or owned any type of weapons or explosives, as claimed by
the authorities. The Government refutes the allegations and submits that the source is seeking
to justify terrorist crimes by portraying them as the exercise of fundamental rights. The
Government submits that no one is detained in Saudi Arabia for the exercise of fundamental
rights.
104.
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 includes political discourse, commentary on public affairs,
discussion of human rights, and journalism. It protects the holding and expressing of opinions,
including those that are critical of or not in line with government policy. 28 Moreover,
article 29 (2) of the Universal Declaration of Human Rights provides that the only legitimate
limitations to 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. The Government
emphasizes that the punishment of the individual for terrorist crimes is not only in accordance
23 See also opinion No. 33/2020, para. 56.
24 A/HRC/30/37, para. 3.
25 Opinions No. 71/2019, para. 73; and No. 30/2022, para. 80.
26 See communication SAU 12/2020. See also A/HRC/40/52/Add.2, para. 17.
27 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 16.
28 Opinion No. 8/2019, para. 55.
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GE.24-10133
13
with article 29 (2), but also stems from the Government’s adherence to relevant international
instruments and its commitment to Security Council resolutions.
105.
According to the Working Group’s jurisprudence, restrictions placed on freedom of
expression by way of deprivation of liberty can be justified only 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.29 These criteria do not appear to have been met in the present case. The
Working Group considers that Mr. Al-Faraj’s conduct fell within the rights protected under
articles 19 and 20 of the Universal Declaration of Human Rights and that he was detained for
peacefully participating in protests against the State’s treatment of the Shia minority.
106.
Reportedly, the counter-terrorism legal framework has been used to punish the
peaceful exercise of the right to freedom of opinion and expression. While the Government
submits that all laws in Saudi Arabia are formulated precisely, without any ambiguity or
vague terms, the Working Group recalls that the laws under which Mr. Al-Faraj was charged
lack legal certainty. The Working Group considers that charges and convictions under
provisions of the law that allow for the criminalization of peaceful expression, enable
arbitrary interpretation and make it difficult for citizens to determine how to act to comply
with the law cannot be regarded as consistent with the Universal Declaration of Human
Rights.30
107.
The Working Group has considered a number of cases concerning deprivation of
liberty under the provisions of the anti-cybercrime law.31 The individuals in those cases, as
with Mr. Al-Faraj, were deprived of liberty for their acts of peaceful expression. Furthermore,
the Working Group has previously found prosecution and imprisonment under the
anti-cybercrime law and the counter-terrorism law to be arbitrary when they resulted from
the legitimate exercise of fundamental human rights. 32 It had also concurred 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 and
terrorism financing act had failed to comply with international human rights standards of
legal certainty, and that contrary to basic international human rights standards, article 1 of
the law had enabled the criminalization of a wide spectrum of acts of peaceful expression,
which were viewed by the authorities as endangering national unity or undermining the
reputation or position of the State.33 The Working Group notes that those concerns have not
been addressed in the counter-terrorism and terrorism financing act of 2017.
108.
The source submits that Mr. Al-Faraj’s detention is arbitrary because it stems from
the exercise of his right to freedom of conscience, namely his refusal to comply with
government orders. Noting that that freedom of thought, conscience and religion are
protected under article 18 of the Universal Declaration of Human Rights, 34 and that
Mr. Al-Faraj peacefully exercised this right, the Working Group finds a violation of article 18
of the Universal Declaration of Human Rights.
109.
The Working Group considers that Mr. Al-Faraj’s deprivation of liberty is arbitrary,
as it resulted from his exercise of the rights or freedoms guaranteed under articles 18, 19 and
20 of the Universal Declaration of Human Rights. His deprivation of liberty therefore falls
within category II. The Working Group refers the case to the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression.
29 E/CN.4/2006/7, para. 43. See also opinion No. 21/2017, para. 40.
30 See, among others, opinion No. 26/2023.
31 See, e.g., opinions No. 10/2018 and No. 71/2019.
32 Opinions No. 63/2017, paras. 54–63; and No. 71/2019, para. 82.
33 See Opinion No. 63/2017.
34 See also opinions No. 16/2008 and No. 43/2017; A/HRC/10/21/Add.3, para. 66; A/HRC/16/47/Add.3,
para. 68; A/HRC/42/39, paras. 59–64; and Human Rights Council resolutions 20/2, 24/17 and 36/18.
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(c)
Category III
110.
Given its finding that the deprivation of liberty of Mr. Al-Faraj is arbitrary under
category II, the Working Group emphasizes that no trial should take place. However, as his
trial has taken place, the Working Group will consider whether the alleged violations of the
right to a fair trial and due process were sufficiently grave to give the deprivation of liberty
an arbitrary character such that it falls within category III.
111.
The source submits that the Government has violated Mr. Al-Faraj’s right to legal
assistance at all times. The Government responds that Mr. Al-Faraj was informed of this right
immediately – on the day of his arrest – and of his right to notify someone of his arrest, and
that he signed an acknowledgment of those rights. He engaged six legal representatives (three
at this own expense and three paid for by the State) who were able to visit him in detention
to provide legal advice. The source in its additional comments argues that the Government
does not specify when Mr. Al-Faraj was able to meet or communicate with his lawyer for the
first time and that only one lawyer was appointed to his case. The Government does not give
any further information on the identity of the lawyers supposedly appointed or the date of
their appointment.
112.
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 delay. 35 The Working Group notes that
Mr. Al-Faraj was deprived of access to legal counsel of his choice while detained
incommunicado and in solitary confinement. Weighing the source’s detailed submissions
against the Government’s more general response, the Working Group finds that the
Government failed to respect his right to legal assistance at all times, a right that 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, pursuant to articles 3, 9,
10 and 11 (1) of the Universal Declaration of Human Rights. This violation substantially
undermined his capacity to defend himself in any subsequent judicial proceedings. The
Working Group finds violations of articles 10 and 11 (1) of the Universal Declaration of
Human Rights and principles 15, 17 and 18 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment. Moreover, as Mr. Al-Faraj 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.
113.
The source claims that Mr. Al-Faraj experienced other due process and fair trial
violations. His restricted access to a lawyer during his detention and interrogations and his
lack of regular access to his lawyer had a detrimental impact on his ability to prepare and
present a defence. The Working Group finds that Mr. Al-Faraj’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.
114.
The source provides detailed allegations of serious acts of torture perpetrated against
Mr. Al-Faraj while in detention, including an instance requiring a transfer in a wheelchair to
hospital when he refused to provide a false confession. Despite the specific and ongoing
nature of the allegations, the Government simply asserts that he was not subjected to any
form of torture. Mr. Al-Faraj claimed during his trial that he had been subjected to torture
and that his confessions had been extracted under duress. He reiterated the claims in his letters
to the Crown Prince and to the President and judges of the Specialized Criminal Court and
attempted to submit complaints to the public prosecutor, but reportedly none of his claims
were investigated. The source highlights that most of the evidence mentioned in the verdict
is based on Mr. Al-Faraj’s forced confession. The Working Group is gravely concerned by
the allegations that threats were made to Mr. Al-Faraj that his relative, who was also a
detainee, would be threatened with collective sexual abuse if Mr. Al-Faraj did not confess.
35 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. See also CAT/C/SAU/CO/2 and
CAT/C/SAU/CO/2/Corr.1, paras. 14 and 15; and opinions No. 63/2017, No. 93/2017 and
No. 86/2020.
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15
115.
If persons allege their confessions were coerced, regardless of the stage of the
proceedings at which the allegation is first made, it is for the judiciary to establish that the
confessions were not obtained through the application of pressure of any kind. 36 The
Government does not address the lack of investigation into allegations of torture but submits
that Mr. Al-Faraj was convicted not only on his confession but on all evidence presented
against him. As the Working Group has previously found, a forced confession taints the entire
proceedings, regardless of whether other evidence was available to support the verdict.37
116.
In relation to the claim that Mr. Al-Faraj was held in solitary confinement for
21 months following his arrest, the Working Group recalls that prolonged solitary
confinement in excess of 15 consecutive days is contrary to rules 43 (1) (b) and 44 of the
Nelson Mandela Rules. The Working Group recalls that the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment has deemed that prolonged
solitary confinement in excess of 15 days, whereby some of the harmful psychological effects
of isolation can become irreversible,38 or incommunicado detention in a secret place,39 may
amount to torture as described in article 1 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
117.
Noting the detailed nature of the source’s submission and the Government’s
non-specific responses, the Working Group finds that the source has presented credible
allegations that could amount to torture. The use of a confession extracted through
ill-treatment contravenes article 15 of the Convention against Torture and principles 1, 6 and
21 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment.40 The Working Group has consistently concluded in its opinions that when
it is not possible for a person who is subjected to torture or other forms of ill-treatment or
punishment to prepare an adequate defence for a trial that respects the equality of both parties
before the judicial proceedings, this amounts to a fair trial violation.41 Torture or ill-treatment
of detainees is not only a grave violation of human rights, but also seriously undermines the
fundamental principles of a fair trial as it can compromise the ability to defend oneself,
especially in the light of the right not to be compelled to testify against oneself or to confess
guilt.42 The Working Group refers the case to the Special Rapporteur on torture.
118.
The source submits that the Specialized Criminal Court and the Specialized Criminal
Court of Appeal are not competent to provide a fair trial in accordance with international
standards and therefore cannot be considered as independent and impartial tribunals, noting
that the Specialized Criminal Court is increasingly used for the prosecution of human rights
defenders and political activists. The Government asserts that the Specialized Criminal Court
is an independent and competent court established by the Supreme Judicial Council, which
was granted the authority to establish courts and determine their territorial and jurisdictional
competence by the act on the judiciary.
119.
Noting the source’s argument that the court has suffered from undue influence from
the executive branch, and the argument regarding the lack of independence relating to judges’
appointments, the Working Group reiterates its previous findings that the Specialized
Criminal Court cannot be considered an independent and impartial tribunal,43 a concern
shared by the Committee against Torture.44 The Working Group further notes the assessment
of the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism regarding the lack of independence of the Court.45
36 Opinion No. 78/2019, para. 52.
37 Opinion No. 34/2015, para. 28.
38 A/66/268, para. 26. See also A/63/175, para. 56.
39 A/56/156, para. 14.
40 See also opinions No. 48/2016, para. 52; No. 3/2017, para. 33; and No. 39/2018, para. 42.
41 See, e.g., opinion No. 32/2019, para. 42.
42 Opinions No. 22/2019, para. 78; and No. 26/2019, para. 104.
43 Opinions No. 22/2019, para. 74; No. 26/2019, para. 102; No. 56/2019, para. 86; and No. 71/2019,
para. 44.
44 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 17.
45 A/HRC/40/52/Add.2, para. 47.
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120.
Similarly, the Committee against Torture has noted that the Specialized Criminal
Court has repeatedly refused to act on claims made by defendants facing terrorism charges
who allege that they were subjected to torture or ill-treatment during interrogations.46 This is
consistent with the source’s allegations regarding Mr. Al-Faraj’s persistent but ultimately
unsuccessful claims of torture and forced confessions. The prosecutor was obliged to
investigate his complaint, in keeping with the duty of prosecutors, under guideline 12 of the
Guidelines on the Role of Prosecutors, to protect human dignity and uphold human rights.47
121.
The Working Group concludes that the trial of Mr. Al-Faraj before the Specialized
Criminal Court and the Specialized Criminal Court of Appeal is in violation of 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.
122.
For the reasons above, the Working Group concludes that the breaches of the fair trial
and due process rights of Mr. Al-Faraj are of such gravity as to give his deprivation of liberty
an arbitrary character, falling within category III.
(d)
Category V
123.
The source submits that Mr. Al-Faraj is part of the Shia minority, and that his
deprivation of liberty and his subsequent death sentence constitute discrimination under
international law, rendering his detention arbitrary under category V. The Government rejects
these claims and reiterates that Mr. Al-Faraj committed several terrorist crimes.
124.
The Working Group has already established that Mr. Al-Faraj’s arrest and detention
resulted from the exercise of his rights under international law, falling under category II. It
recalls that, when detention has resulted from the active exercise of civil and political rights,
there is a strong presumption that the deprivation of liberty also constitutes a violation of
international law based on political and other views.
125.
To determine whether a deprivation of liberty is discriminatory, the Working Group
considers several non-cumulative factors. These include whether the deprivation of liberty is
part of a pattern of persecution against the detained person (for example, the person was
targeted through multiple previous detentions); whether other people with comparable
distinguishing characteristics have also been persecuted; and whether the context suggests
that the authorities have detained a person on discriminatory grounds or to prevent them from
exercising their human rights.48
126.
The source provides detailed submissions on the pattern of persecution and long
history of discrimination against the Shia religious minority in Sharqiyah, particularly
evident following the protest movement in 2011, and argues that this discrimination forms
the background of Mr. Al-Faraj’s arrest, trial and death sentence. The Working Group recalls
its jurisprudence on similar cases of Shia detainees who were reportedly executed.49 The
Committee on the Elimination of Racial Discrimination has expressed its concern that
ethno-religious minorities in Saudi Arabia face obstacles in freely practicing their right to
freedom of religion or belief and that certain ethno-religious minorities face discrimination
in the legal system.50
127.
Noting the detailed and well-substantiated submission of the source, the Working
Group considers that Mr. Al-Faraj’s deprivation of liberty was based on his religion and
therefore discriminatory. The Working Group concludes that the authorities violated
articles 2 and 7 of the Universal Declaration of Human Rights. Mr. Al-Faraj’s deprivation of
liberty is therefore arbitrary under category V.
46 CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, para. 17.
47 See also opinions No. 47/2017, para. 29; and No. 63/2020, para. 42.
48 A/HRC/36/37, para. 48.
49 See opinions No. 26/2019 and No. 56/2019.
50 CERD/C/SAU/CO/4-9, para. 23.
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(e)
Concluding remarks
128.
While the Government asserts that Mr. Al-Faraj is in good health, the Working Group
is gravely concerned that he is reportedly facing health issues caused by the severe torture
alleged. It is obliged to remind the Government that all persons deprived of their liberty must
be treated with humanity and with respect to the inherent dignity of the person and that denial
of medical assistance is contrary to the Nelson Mandela Rules; the Working Group refers in
particular to rules 24, 25, 27, 30 and 47, and principle 24 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
129.
In its 30-year history, the Working Group has found Saudi Arabia in violation of its
international human rights obligations in numerous cases.51 The Working Group reiterates its
concern that this indicates a widespread or systemic problem of arbitrary detention in Saudi
Arabia, which amounts to a serious violation of international law. The Working Group recalls
that under certain circumstances, widespread or systematic imprisonment or other severe
deprivation of liberty in violation of the rules of international law may constitute crimes
against humanity.52 Various United Nations entities, including the present Working Group,
have raised concerns about the counter-terrorism and anti-cybercrime laws of Saudi Arabia.53
The Working Group regrets that those concerns persist.
130.
The Working Group welcomes the voluntary pledges made by the State pursuant to
General Assembly resolution 60/251,54 and, in particular, the expressed willingness of the
Government to cooperate with the Human Rights 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
131.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Saud bin Mohammed bin Ali al-Faraj, being in
contravention of articles 2, 3, 7, 9, 10, 11, 18, 19 and 20 of the Universal Declaration
of Human Rights, is arbitrary and falls within categories I, II, III and V.
132.
The Working Group requests the Government of Saudi Arabia to take the steps
necessary to remedy the situation of Mr. Al-Faraj without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration of
Human Rights.
133.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Al-Faraj immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
134.
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-Faraj and to take appropriate measures against those responsible for the violation of
his rights.
135.
The Working Group requests the Government to bring its laws, particularly the
counter-terrorism and terrorism financing act, into conformity with the recommendations
51 See, e.g., decisions No. 40/1992, No. 19/1995 and No. 48/1995; and opinions No. 8/2002,
No. 55/2023 and No. 56/2023.
52 A/HRC/13/42, para. 30. See also opinions No. 1/2011, para. 21; No. 37/2011, para. 15; No. 51/2017,
para. 57; and No. 56/2017, para. 72.
53 See opinions No. 27/2023 and No. 56/2023; A/HRC/40/52/Add.2; and CAT/C/SAU/CO/2 and
CAT/C/SAU/CO/2/Corr.1.
54 See A/75/377, annex.
A/HRC/WGAD/2024/26
18
GE.24-10133
made in the present opinion and with the commitments made by the Government of Saudi
Arabia under international human rights law.
136.
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 independence of judges
and lawyers and the Special Rapporteur on torture.
137.
The Working Group recommends that the Government accede to the International
Covenant on Civil and Political Rights.
138.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
139.
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-Faraj has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Al-Faraj;
(c)
Whether an investigation has been conducted into the violation of
Mr. Al-Faraj’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.
140.
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.
141.
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.
142.
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.55
[Adopted on 27 March 2024]
55 See Human Rights Council resolution 51/8, paras. 6 and 9.