In 2000, Saudi Arabia’s foreign affairs ministry issued a lengthy report entitled “Protection of Human Rights in Criminal Procedure and in the Organization of the Judicial System.” The report commendably stated that the kingdom was “extremely eager” to ensure that the investigation of criminal offenses and the identification of perpetrators established “the full truth, without any shadow of doubt, so that no innocent person can be harmed as a result of an arbitrary decision and no criminal can escape justice through laxity or negligence.” It also emphasized that the presumption of innocence is enshrined as a principle of Islamic shariah and stated that “convictions must be based on absolute certainty in light of the evidence presented, with which the judge must be satisfied.”

The “bombings case” provides extremely troubling illustrations of how the Ministry of Interior and the courts – including higher judicial authorities – repeatedly failed to ensure that the administration of justice was in compliance with the laws and regulations that protect human rights in the kingdom, and the government’s obligations under international human rights law. Human Rights Watch’s analysis of the case leaves us deeply concerned that abuses and irregularities identified in previous years continue to take place. Specifically, these include:

• the lack of a consistent policy of prompt notification following arrests and detentions
  
• abusive interrogations of suspects under prolonged incommunicado detention
  
• the lack of independent judicial oversight of detention
  
• judicial inaction in the face of complaints of coerced confessions
  
• denial of prompt access to lawyers
  
• convening trials and other legal proceedings without the knowledge and presence of lawyers
  
• paucity of public information about trials and judicial review of lower court judgments
  
• imposing silence on prisoners as a condition of release

Responsible authorities in Saudi Arabia should address these and other issues as a matter of high priority, and consider the following recommendations:

1. Implement a uniform policy of prompt notification of all arrests and detentions

All too often in the kingdom, there has been a blackout period following the arrest or detention of individuals, during which time it is difficult or impossible to obtain official confirmation of their whereabouts. This has led family and friends to report persons “missing,” or to visit police stations and other places of detention in search of them.

In the “bombings case,” in some instances there were significant delays before consular officials and family members received official notification from Saudi government officials that suspects were in interior ministry custody.

For example, British authorities first learned of Alexander Mitchell’s arrest in December 2000 when his wife reported to them in January 2001 that he had been taken three weeks earlier. There were similar problems following subsequent arrests of other suspects. It was not until March 18, 2001, that Saudi authorities confirmed that James King, an Irish national, was arrested on February 25, 2001. Canadian government officials said publicly that they attempted repeatedly to ascertain the whereabouts of a Canadian citizen who was reported missing on March 16, 2001. It was not until March 27, 2001, that the interior ministry confirmed that this individual – whose name Canadian authorities continue to withhold -- had been arrested. He was reportedly held for sixty days and tortured. A senior Canadian government official informed Human Rights Watch that Crown Prince Abdullah was made personally aware of this detainee’s mistreatment. During the Human Rights Watch visit to the kingdom in January 2003, diplomats at various embassies in Riyadh complained that consular notification and access continued to be inadequate.

Article 35 of the kingdom’s code of criminal procedure, which became law in May 2002, states that any person arrested or detained shall “be advised of the reasons of his detention and shall be entitled to communicate with any person of his choice to inform him of his arrest.” Article 116 adds that notification of the reasons for detention should be prompt: “Whoever is arrested or detained shall be promptly notified of the reasons for his arrest or detention, and shall be entitled to communicate with any persons of his choice to inform him (of his arrest or detention), provided that such communication is under the supervision of the criminal investigation officer.” Unfortunately, neither article specifies when a suspect is entitled to inform the outside world of his or her whereabouts and the reasons for the detention. For the important guarantee in article 35 to have practical meaning, exercise of the right to contact an outside party should be offered promptly. The time frame should be specified in the kingdom’s regulations, made known to the public, and applied uniformly.

Human Rights Watch recommends that as soon as a suspect is taken into custody by any authority in the kingdom, information about the arrest should be made immediately available to family members, lawyers, other legal representatives (wukala), and consular officials, in cases where individuals are foreign nationals. Under no circumstances should any of these interested parties be kept in the dark about a person’s whereabouts and denied official confirmation of such information.

2. Take meaningful steps to protect detainees from abusive treatment during criminal investigations

In recent years, former criminal suspects have reported the use of abusive interrogation methods at the hands of Ministry of Interior investigators. These have included beatings, including on the soles of the feet, punching, kicking, suspending detainees by handcuffed wrists from doors or ceilings, sleep deprivation for up to ten days, and death threats against suspects and their immediate family members – all aimed at obtaining confessions. Furthermore, we are aware of continued reports that suspects and prisoners have been required to sign statements that they were not mistreated as a condition of release.

In the “bombings case,” three of the convicted men were held in incommunicado detention for long periods. British citizen Alexander Mitchell was arrested on December 17, 2000, and held incommunicado until January 28, 2001. William Sampson, a Canadian, was arrested on December 16, 2000, and was first seen by consular officials on January 27, 2001. Belgian national Raf Schyvens was arrested on December 9, 2000, and did not receive his first consular visit until January 25, 2001. Soon thereafter, on February 4, 2001, all three men were shown on Saudi state television “confessing” to various acts of violence. None of the men had access to lawyers or legal assistance during this long period when the alleged confessions were extracted.

In July 2002, the Saudi legal team for six of the accused in the “bombings case” – including Alexander Mitchell and William Sampson -- submitted a lengthy memorandum to the Supreme Judicial Council, in which they noted that their clients alleged that their confessions “were extracted from them by torture.” According to this memorandum, among other physical abuse the men were “forced to stand up while their hands were shackled with a chain to the top of a door” and “their feet and hands were shackled and their bodies were hanging upside down.” They also were allegedly promised “pardon and quick release if they confess[ed] to the bombings in a manner dictated by the investigator.”

Such treatment is a clear violation of the kingdom’s laws, including article 2 of the criminal procedure code which states in pertinent part that an arrested person “shall not be subjected to any bodily or moral harm” or to “any torture or degrading treatment,” and article 102 of the code which states that an interrogation “shall be conducted in a manner that does not affect the will of the accused in making his statements.” Torture and other abuse during interrogation is also a violation of the kingdom’s legal obligations as a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 2(2) of the convention explicitly prohibits torture in all circumstances, and article 4(1) requires each State Party to “ensure that all acts of torture are offences under its criminal law.”

Human Rights Watch recommends that no criminal suspect should be held in incommunicado detention and denied access to a lawyer and, in the case of foreign nationals, both consular officials and lawyers. International human rights standards require that anyone facing a criminal charge be promptly afforded, within days, the right to communicate with family members and legal counsel. Providing such access, and allowing detainees to speak freely with lawyers and others, would afford an important measure of protection against interrogators using unlawful means to coerce confessions. Authorities should also consider the recommendation of the U.N. Special Rapporteur on the independence of judges and lawyers that the government require the every interrogation session be taped or videotaped in its entirety.

3. Provide for independent judicial oversight of detention

Abuse of detainees under interrogation, such as described above, underscores the need for independent oversight of the detention process. There are currently no provisions in the kingdom’s laws to protect effectively individuals from arbitrary and unlawful detention. Article 39 of the criminal procedure code gives to officials of the Bureau of Investigation and Prosecution the power to investigate if a detention is lawful and to order the release of a detainee in such cases. But article 114 of the code also permits the same body to authorize extension of the detention of a suspect for a period of up to six months from the date of arrest, upon the request of criminal investigators. The power to detain and the power to investigate the legality of a detention is thus vested in the same body, beyond the reach of independent judicial oversight and supervision.

The United Nations Special Rapporteur on the independence of judges and lawyers stated in his report of January 2003 that Saudi authorities informed him “that because of their statutorily guaranteed independence it was appropriate for prosecutors to be invested with the power to extend detention.” The Special Rapporteur noted, however, that the functions of prosecutors should be kept “strictly separate” from judicial functions, and that “determination of the rights of the accused and the legality of the exercise of prosecutorial discretion is clearly a judicial function.” He recommended that the kingdom’s law “should be amended to ensure that accused persons are promptly brought before a court after their arrest or detention with any subsequent periods of detention being authorized by the court.” Human Rights Watch endorses this recommendation and urges its implementation.

4. Instruct judges of the legal obligation to investigate complaints of torture

It is a matter of serious concern to Human Rights Watch that, according to the defense team in the “bombings case,” judges ignored the defendants’ complaints that their confessions were coerced under torture and took no steps to probe the truthfulness of the confessions. The defense memorandum to the Supreme Judicial Council charged that the process of affirming the confessions was “grossly flawed.”

The memorandum stated that the judges merely verified that the confessions were written and signed by the defendants, without examining the substance of the confessions or the circumstances under which they were obtained, both key issues in view of the defendants’ claims of torture. “The judges who affirm[ed] the confessions did not go beyond asking our clients whether the handwritings in the written confessions were theirs and whether the signatures affixed on them were theirs,” the defense lawyers claimed. They argued that, instead, judges “should question the accused about his confession,” and “focus on the requirements of the confession and whether it includes the elements of the crime.” Such a process is now formalized in article 162 of the criminal procedure code, which states: “If the accused at any time confesses to the offense of which he is charged, the court shall hear his statement in detail and examine him. If the court is satisfied that it is a true confession and sees no need for further evidence, it shall take no further action and decide the case. However, the court shall complete the investigation if necessary.”

The judges appeared unconcerned about the allegations of torture and took no steps to have the complaints investigated, the defense team wrote:

No questions were asked about the content of the confessions and whether they were given voluntarily and willingly. Save for sending our clients back for a short period of time, the judges paid no attention to their claim that they were coerced and tortured. The confessions were quickly affirmed when our clients appeared again [before the judges], after they had been threatened and intimidated, perhaps even by the investigator.

The judges should not have affirmed the confessions, but “should have prepared reports” about the allegations of the defendants and “requested the competent authorities to investigate these claims,” the memorandum concluded.

Human Rights Watch recommends that all judges in the kingdom be instructed to order investigations when there are credible allegations that investigators have resorted to torture or other abuse and confessions have been coerced. This is particularly important in cases where suspects have not been granted access to lawyers or legal representatives during interrogation, or where there is no independent evidence of how interrogations were conducted.

Saudi Arabia’s legal obligations as a party to the Convention against Torture require that judicial authorities undertake such action to prevent acts of torture. Article 12 of the convention states that each State Party “shall ensure that its competent authorities proceed to a prompt and impartial investigation wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” Article 13 adds that “any individual who alleges he has been subjected to torture…has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.”

These and other provisions of the Convention against Torture are part of the kingdom’s domestic law and, as such, can be invoked before the courts.

Human Rights Watch further recommends that immediate steps be taken to ensure that all judges in the kingdom are informed of the convention’s provisions, in particular the affirmative obligation to investigate allegations of torture in a prompt and independent manner.

5. Ensure that all criminal suspects have the right to prompt and ongoing access to lawyers or other legal representatives

Defendants in the “bombings case” did not have access to legal assistance while they were under investigation and subjected to abusive interrogations in 2000 and 2001, nor did they have lawyers when they appeared in court and told judges that their confessions were coerced. The Saudi defense team for the men who “confessed” on state television in February 2001 and August 2001 did not gain access to them until October 2001.

Other suspects -- who were detained, pressured to confess, and later released -- were also denied legal assistance. James King, whose case is cited above, was held for nine months in 2001 without ever seeing a lawyer. He told Human Rights Watch when he first asked about his right to a lawyer, his interrogator laughed and said: “Don’t be silly, you have no rights.” Mr. King said he was told repeatedly during his first eight weeks of interrogation that he could be held for as long as authorities wished, for years if necessary. Ron Jones, who was held for sixty-seven days in 2001, never had access to a lawyer. He said that during his initial days in detention he was told repeatedly that he had no rights and could not see a lawyer or British consular officials. He told Human Rights Watch that he was warned to cease making such requests and reminded that no one knew of his whereabouts.

More broadly, Human Rights Watch is deeply concerned about the large number of individuals who are imprisoned in Saudi Arabia but not yet convicted and who may not have access to lawyers or any other form of legal representation during criminal investigations and trials. As of January 2003, there were approximately 7,000 Saudi citizens and another 6,000 foreigners in prison but not yet been convicted,

Major General Dr. Ali bin Hussein al-Harithi, the general director of the prisons directorate, informed us. Given the small number of practicing lawyers in the kingdom – which one senior Saudi lawyer
estimated at about 300 in number – it is unclear how the right of these prisoners to legal counsel can be guaranteed as a practical matter.

The new criminal procedure code establishes the right to seek legal assistance during investigation and trial. Article 4 explicitly states: “Any accused person shall have the right to seek the assistance of a lawyer or a representative to defend him during the investigation and trial stages.” Article 70 seems to provide a clear legal basis for ensuring that investigation sessions no longer take place behind closed doors but in the presence of a lawyer: “The investigator shall not, during the investigation, separate the accused from his accompanying representative or attorney. The representative or attorney shall not intervene in the investigation except with the permission of the investigator. In all cases, the representative or attorney may deliver to the investigator a written memorandum of his comments and the investigator shall attach that memorandum to the file of the case.” Thus, in cases where suspects have appointed lawyers or other counsel, access to them should be provided promptly, as soon as possible following arrest, and not withheld for any reason.

Human Rights Watch is concerned, however, that article 4 of the code does not guarantee to every accused person the right to a lawyer, particularly in cases where the individual lacks the financial means to pay for one. In addition, the apparent gross imbalance between the thousands of untried prisoners and the small community of lawyers in the kingdom suggests that many suspects may be forced to endure investigation and trial without knowledge of their rights under the law and any form of legal assistance. This situation should be addressed as an urgent matter.

The U.N. Special Rapporteur on the independence of judges and lawyers observed the “absence of a culture of legal representation” in the kingdom and “the perception by many judges that the presence of a lawyer is inimical to the achievement of a truthful outcome in a given case,” which he found “has undermined the protective function of legal representation.” He recommended that “more needs to be done to ensure that the accused is given access to a lawyer at all stages of the legal process.” He offered suggestions to remedy this situation, including allowing women law graduates to practice law, creating an office of public defenders, establishing a system for lawyers willing to offer free services, and providing financial assistance so that suspects can obtain legal services. Human Rights Watch endorses these proposals and urges Saudi authorities to take steps to implement them.

6. End the practice of trials without lawyers

Human Rights Watch remains deeply troubled about secret trial and appeals proceedings in the “bombings case.” The Saudi legal team complained to the Supreme Judicial Council that it had no role whatsoever in the legal process, and that the only opportunity to defend their clients was by way of the detailed written memorandum it submitted to the council in July 2002. The memorandum included this disturbing disclosure:

[T]his case has been tried by the competent court and has been reviewed by the Court of Cassation and the Supreme Judicial Council without us being notified and without the knowledge of our clients, who told us countless times that they were not aware they were facing trial.

The memorandum also noted that the defendants “thought they were participating in some preparatory procedures that would eventually lead to a trial,” and were not aware that they were on trial.

The all-encompassing secrecy and lack of legal counsel clearly frustrated the Canadian government, which admitted publicly that it was kept in the dark for months about the outcome of the legal proceedings in which its citizen William Sampson was sentenced to death. In late April 2002, a ministry of foreign affairs spokeswoman reported that the “unconfirmed information is that the trial was held in secret and even [Sampson’s] lawyer was not informed. Mr. Sampson was not legally represented at the two subsequent appeals either. The Saudi authorities have assured us Mr. Sampson would have legal representation, and there were no suggestions that the trials would be held in secret.” For the next three months, the Canadian government sought unsuccessfully to obtain official notification about these proceedings. The foreign ministry reported that it was not until July 30, 2002, that it learned officially from the Saudi government that “a trial took place, that a verdict had been handed [down], that it had been reviewed by two upper level courts…and a death sentence handed down against Mr. Sampson and one of the British co-accused [Alexander Mitchell].”

Human Rights Watch recommends that information about venues and schedules of criminal trials in the kingdom should be a matter of public record and not be kept secret. This should be the norm even if authorities decide to close the proceedings to the public for reasons of morals, public order, or national security, as is permitted on a case-by-case basis under international law. Under no circumstances should defense lawyers or other legal representatives remain uninformed of the place and date of trials of their clients. In the interest of justice and due process of law, their presence is absolutely required with no exception.

Human Rights Watch further recommends that criminal trials should as a rule be open to the public and that closed trials should be the exception. As the Ministry of Foreign Affairs wrote in its report cited above: “The public nature of hearings undoubtedly increases the confidence of litigants and other persons in the fairness of the administration of justice and constitutes a form of public control over judges insofar as it gives them a strong incentive to be more meticulous and to comply fully with the requirements of fairness and impartiality.” The U.N. Special Rapporteur echoed this view in his January 2003 report: “The public nature of court hearings is essential for a fair trial and for ensuring the democratic accountability of the legal system….[T]he ability to close court hearings in circumstances where it is deemed necessary for determining the truth, as specified in article 155 in the code of criminal procedure, is too broad in scope and undermines the transparency of the court system.”

7. Provide timely and relevant public information about trials and other judicial rulings

There continues to be a marked lack of transparency about the criminal trial proceedings and outcomes. Authorities routinely announce that trials are in progress or have been concluded without providing relevant details. In the “bombings case,” the situation was in the extreme, with the defendants, defense lawyers, and other interested parties, including family members, left completely uninformed about the ongoing legal processes.

The code of criminal procedure clearly envisions that information about trials should be made publicly available. Article 182 states that even when a case has been tried in closed session the court’s judgment should be read in an open session. It additionally requires that the judgment include the most significant information about the proceeding, namely “the name of the rendering court, its date, names of the judges, names of the litigants, the crime subject of the action, a summary of claims or defenses submitted by the litigants and the supporting evidence and arguments, the stages of the action, the text of the judgment, reasons and legal bases therefor, and whether it was rendered unanimously or by majority vote.”

Public disclosure of the evidence is particularly important, and is affirmed in article 180 of the criminal procedure code, which mandates that a court “shall base its judgment on the evidence produced during the trial.” The defense team in the bombings case complained to the Supreme Judicial Council that they were not provided with a copy of the sentencing document. “We were only allowed to see the document at the Public Prosecutor’s Office but we were not allowed to take a copy or sections of the document to discuss them with our clients,” they wrote. “In such a secretive case, how is the attorney supposed to defend the accused under these circumstances?”

Human Rights Watch strongly recommends that the Ministry of Justice institute procedures for the public dissemination of the judgments of all bodies in the judicial system including courts of summary jurisdiction, the general courts, the Court of Cassation, and the Supreme Judicial Council, and under no circumstances withhold copies of judgments from lawyers and other legal representatives.

8. End the practice of coercing prisoners into silence as a condition of release

Human Rights Watch is concerned about reports that the interior ministry has coerced detainees and prisoners into signing statements as a condition of release, pledging not to disclose information about abusive treatment.

One Saudi citizen, who was released in 2002 after being held for six years without charge in interior ministry custody, provided information to Human Rights Watch about torture in detention. He described "beating with sticks, whips, and electric cables; use of a revolving electric chair until the victim loses consciousness and begins to vomit; sleep deprivation for long periods, up to one week; and forcing the victim to stand on one leg and raise one arm for extended periods." This former prisoner said that as a condition of release he was forced to sign a pledge that he would not speak or write to anyone about what he had witnessed.

Three foreign nationals, all detained as suspects in the “bombings case” and later released, said that they were compelled to sign various statements prior to release.