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VII. Due Process and Fair Trial Violations

The violations of due process rights described below significantly impinge on the ability of a defendant to mount an effective defense in court. At trial the defendant, typically for the first time, is given the opportunity to present his or her case to a member of the judiciary, who should be independent from the prosecution service, and to whom he or she can assert their innocence, dispute factual aspects of the prosecutor’s charge, or confess guilt and show remorse in the hope of a lenient sentence. It is therefore imperative that procedures at trial do not further undermine criminal defendants’ rights to a fair trial. However, with but a couple of exceptions, defendants interviewed by Human Rights Watch did not know how Saudi law in fact regulated trials or what human rights safeguards they should have been able to avail themselves of at trial.

The principle of “equality of arms” guarantees the defendant’s ability to present evidence on terms equal to those of the prosecution.²⁴⁰ Unlike individuals facing criminal charges, the state has a superior array of financial and human resources, expertise, and technology to help it investigate the crimes its prosecutors refer to trial. The defendant, on the other hand, is often left hoping that the judge will probe the veracity of the accusations instead of being able to present countervailing facts in his or her defense. This would be the job of legal counsel for the defense, who, all too often, is absent from Saudi criminal trials.

Indigent defendants Human Rights Watch encountered, often foreigners, are at a particular disadvantage in Saudi courts, because they had no means to secure legal counsel and were themselves ignorant of the substance of charges against them and lacked knowledge about the arguments and procedures taking place inside the courtroom. Many felt the judge was their adversary.

When defendants did not know what charges they faced, or the sentences the charges carried, they did not know which aspects of the prosecutor’s arguments were most important to challenge. Because the authorities had not informed them of their right to legal counsel, or they did not have the resources to hire a lawyer in the absence of a public defender program, they had no legal assistance. Because prison authorities often informed defendants less than 24 hours before their first court appointment, and because official documents, such as the charge sheet, the transcripts of the interrogations, and all evidence against them, are inaccessible to defendants, they did not have the time or means to prepare their defense. Because they often perceived the judge as being harsh with them, allowing them to speak only in response to questions, they felt unable to present their version of events, call witnesses in their defense, or question the prosecution’s witnesses or other evidence.

In order for justice to be done, it has to be both fair and seen to be fair. The experience of current or former defendants detailed here suggest that those working in the Saudi justice system face urgent tasks of improving its transparency and putting in place mechanisms that fully afford parties to a suit their rights.²⁴¹

Based on its investigation Human Rights Watch believes that fundamental flaws in the Saudi criminal justice system make miscarriages of justice a common phenomenon. These flaws include an absence of the presumption of the defendant’s innocence, meting out summary justice, sentencing defendants despite the judges’ professed doubt about their guilt, and penalizing acts that are not recognized criminal offenses.

Presumption of Innocence

The right to presumption of innocence until and unless proved guilty is a fundamental underpinning of the right to a fair trial. Article 11 of the UDHR and article 14.2 of the ICCPR guarantee everyone charged with a criminal offense “the right to be presumed innocent until proved guilty according to law.”²⁴²

Principle 36 of the Body of Principles provides, “A detained person suspected of or charged with a criminal offence shall be presumed innocent and shall be treated as such until proved guilty according to law.”²⁴³

As Principle 36 notes, not only judges but law enforcement and other officials also have the duty to treat a person charged with a criminal offense as innocent. As noted above, Saudi law allows law enforcement officers to arrest suspects only pursuant to a prosecutor’s arrest warrant, unless the suspect is caught while committing a crime. Article 34 of the LCP gives law enforcement officers the power to determine whether to hold or release suspects during initial interrogation. But Article 34 also reverses the principle of presumed innocence, requiring the suspect in effect to dispel the law enforcement officer’s suspicion that he or she has committed an offense by demonstrating his or her innocence. Only if that is achieved must the arresting officer release him or her. In a memorandum to the Saudi government commenting on the LCP , Human Rights Watch pointed out that this provision, in reversing the presumption of innocence, is incompatible with international human rights law.²⁴⁴

None of the current and former criminal defendants Human Rights Watch spoke with recalled having an opportunity to establish their innocence to the law enforcement agency responsible for their arrest in order to gain their release within 24 hours. Many could not distinguish between the arresting officer and the prosecutor who interrogated them, if indeed there was such a distinction.

Saudi law does not explicitly provide the defendant with an opportunity at trial to address the judge. Article 161 of the LCP states that, after the charges against the defendant have been read, “The court shall then ask the accused to respond.”²⁴⁵

Some defendants told Human Rights Watch that during their trials they had only three opportunities to speak: first, in response to the charges; second, in response to the judge’s detailed questions; and third, in response to the verdict. They did not consider any of these opportunities as sufficient to speak freely or draw attention to potentially exculpatory evidence. In their view, the judge only pursued questions pertinent to their guilt, not their possible innocence.

(Article 174 of the LCP appears to give a defendant some room to present a defense in criminal cases where a civilian plaintiff is pressing charges. The article provides, “The court shall first hear the prosecutor’s charges, then the response of the accused or his representative or attorney. Then, the court shall hear the claimant regarding the private right of action to be followed by the response of the accused or his legal representative or attorney. Each of the parties shall be entitled to comment on the statement of the other party, and the accused shall be the last to address the court.”²⁴⁶)

Human Rights Watch heard a frequent refrain from those we interviewed: “The judge is my [legal] opponent [al-qadi, huwa khasmi].” Usama recounted his brief courtroom trial more than one year after he allegedly shot a firearm during a large demonstration outside the governor of Najran’s residence in April 2000. The judge, he said, asked him,

“Do you deny everything [in your confession]?” I said “yes.” He said, “Sit down, tell us the truth.” I told the truth, including the torture. [Prosecutor] Arfiji then said, “There are witnesses against him.” I said, “If there are witnesses, then their testimony is coerced.” The judge glowered at me, he looked like someone who was about to sentence me to death, so I signed my statement [of confession].²⁴⁷

(Usama’s case is described in more detail in chapter VIII, below.)

‘Imad described his trial on a charge of assault. There appeared to be no prosecutor present, he said, only the judge, two scribes, and an assistant to the judge. The judge read out the charges, and ’Imad responded by asking to see the evidence of assault, since the victim was not present. According to ’Imad, the judge then said, “Whatever the interrogator says, is true,” and did not allow him to speak further, sentenced him to two years in prison, and sent the case to the governor to review and set the appropriate sentence.²⁴⁸ The whole trial took one session.²⁴⁹

In another case, café owner Khalid faced trial for allegedly insulting the CPVPV members who had arrested him (see above). Khalid told Human Rights Watch, “The judge raised his voice and then hollered at me ‘Why do you attack the Commission [for the Promotion of Virtue and Prevention of Vice]?’ I told him I hadn’t.”²⁵⁰ After Khalid had indicated to the judge that he would appeal his initial ruling of 200 lashes, the judge reduced his sentence to 100, and, after that, to 10 lashes, telling Khalid, “I have to sentence you.”²⁵¹ Khalid had brought a personal representative with him to the sentencing, who separately told Human Rights Watch that when he objected to the proceedings, the judge told him, “Don’t speak. You are an infidel [kafir].”²⁵²

Before Saudi Arabia executed him for armed robbery on February 19, 2006, Ranjit de Silva, of Sri Lanka, told Human Rights Watch from his prison cell about his trial. Asked if he had an opportunity to explain what he said was his limited role in the robberies, which he did not deny, de Silva told Human Rights Watch, “It is very dangerous to speak in court. We can’t speak in front of the judge.” De Silva said that after sentencing him to death, the judge pressured him to accept the verdict and not to appeal.²⁵³

One prisoner in al-Ha’ir prison told Human Rights Watch that he had twice previously been sentenced for theft. Nasim said that in those trials there were witnesses and plaintiffs [khusum], but that at his third trial there was no evidence. He said, “I put my fingerprint on a paper [during interrogation] without knowing what I was confessing to. I did not speak at this trial or in the previous two trials. They brought witnesses from the gold store [he was accused of stealing from] but they said that they didn’t recognize me and there was no other evidence presented.” Nasim told Human Rights Watch that the judge sentenced him nonetheless and simply told him to “take it up with the higher council.”²⁵⁴

During a group interview with prisoners in al-Ha’ir Correctional Facility, all eight prisoners told Human Rights Watch that they did not have the opportunity to speak at trial unless they were prepared to confess. One prisoner said that the judge only accepted written comments.²⁵⁵ ’Azzam, a lawyer in Jeddah, also told Human Rights Watch that some judges prefer written submissions.²⁵⁶

Treatment as convicted prisoner

Respect for the presumption of innocence requires that defendants are not subjected to treatment which is normally appropriate and reserved for convicted persons. Pretrial detention of persons accused of a crime should only be used to ensure that the accused person does not interfere in the course of justice. Principle 8 of the Body of Principles provides that “[p]ersons in detention shall be subject to treatment appropriate to their unconvicted status. Accordingly, they shall, whenever possible, be kept separate from imprisoned persons.”²⁵⁷ In Saudi prisons, no separation between convicted and unconvicted prisoners exists. The director of Saudi prisons, Ali al-Harithi, told Human Rights Watch that his department is planning construction of 35 new prisons. Under this plan, existing prisons would be converted to pretrial holding facilities.²⁵⁸

Inside the courtroom, prisoners should not be unnecessarily restrained or forced to wear prison uniforms. Article 158 of the Saudi LCP provides that “No physical restraints shall be placed on the accused during court hearings.”²⁵⁹ Human Rights Watch observed one prisoner in shackles entering a courtroom in Najran and one prisoner in foot- and hand-cuffs being led in the corridor in Jeddah’s Partial Court. This court has a jail for detainees waiting to be called to the trial chamber. This room on the bottom floor of the court house is barren, with no facilities to sit, no facilities for lawyers, and no facilities to write. Detainees spend their time there shackled and guarded, sitting on the floor.²⁶⁰

Media reporting on individuals may alter public views and, in some cases, influence the judge’s perception of a defendant’s innocence. To ensure privacy where strictly necessary in the interests of justice, a judge should therefore have the authority to restrict access to the proceedings. Article 155 of the LCP provides that “[t]he court may exceptionally consider the action or any part thereof in closed hearings, or may prohibit certain classes of people from attending those hearings for security reasons, or maintenance of public morality, if it is deemed necessary for determining the truth.”²⁶¹ (Regarding the overly broad interpretation of a judge’s right to close hearings and its practice, see “Public Trial,” below).

Self-incrimination and presumption of innocence

Broadly interpreted, the right not to incriminate oneself has come to mean the right to remain silent without the silence being taken as a possible admission of guilt, or having any other adverse effect on the judicial proceedings for the defendant. Under a narrower interpretation, a judge might compel the defendant (or any other person) to answer questions except those in which he or she may admit guilt.

Article 14.3(g) of the ICCPR gives the defendant the right “Not to be compelled to testify against himself or to confess guilt.”²⁶² Article 16(f) of the Arab Charter on Human Rights repeats this provision verbatim.²⁶³ Saudi law does not contain protections against self-incrimination. To the contrary, Article 163 of the LCP appears to foresee the possibility of defendants refusing to respond, in which case “the court shall proceed to hear the evidence and take whatever action it deems necessary with respect thereto. It shall interrogate the accused in detail regarding the evidence and the content of memorandum of the charges.” The Law of Procedure before Sharia Courts, which may apply to situations in which a private plaintiff seeks the defendant’s conviction on criminal charges, specifically allows a plaintiff to compel a defendant to testify under oath about specific circumstances (Article 107) without giving him or her the right to remain silent on issues in which he or she may acknowledge guilt. A person may contest “the permissibility or relevance” of taking an oath (Article 109), and may refuse to take an oath (Articles 108), but such refusal may have an impact on the proceedings, although the law states that it “shall be of no consequence outside the hearing.”²⁶⁴

Lawyer ’Azzam told Human Rights Watch that confessions are only used as circumstantial evidence to verify forensic evidence and that judges sometimes discard admissions of guilt.²⁶⁵ This is not supported, however, by the LCP or by opinions of other lawyers. Article 162 of the LCP 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.”²⁶⁶ Lawyer and former judge Isma’il observed, “The judge will get a 500-page dossier but he doesn’t look at it. He will put it aside and only look at the confession. Then he will ask the defendant, ‘Is what you say in the confession true?’”²⁶⁷ Another lawyer and former judge, Muhsin, affirmed this view, saying, “A judge will put a file to one side, ask the defendant for a confession, and then ask the clerk to read the statement or a prior confession [before trial] to the defendant, and ask if he or she agrees. If he or she agrees, the judge immediately sentences him or her to X. If not, the sentence is Y.”²⁶⁸

Another defense lawyer, Subhi, told Human Rights Watch, “The judge thinks the accused is guilty. That’s the mental state of every judge.” He also described the evidence a judge cites in a typical verdict as “based on the prosecution, the words of the defendants, and the testimony of the witnesses.”²⁶⁹ Saudi judges, the Saudi Human Rights Commission, and the Saudi Ministry of Justice did not grant Human Rights Watch permission to observe trials.

Appointing a Lawyer

Even when security detainees are aware of the right to counsel, they and their families encounter formidable obstacles in obtaining effective legal representation. It is difficult to retain legal representation in part because lawyers are reluctant to take on such cases. ‘Adnan told Human Rights Watch that around April 2006 he tried to obtain a lawyer for his brother, Jawwad, whom the mabahith had arrested on December 22, 2002, in the northern city of Hafr al-Batin. The lawyers he contacted told him, “We don’t take mabahith cases.”²⁷⁰

Even where a family succeeds in retaining counsel, it appears to be impossible for the lawyer to contact his client in the mabahith prisons, to uncover specific charges against the client, or to petition a court effectively to move towards a hearing of evidence underlying any charges. Former judge and now lawyer Isma’il told Human Rights Watch that in September 2004 he attempted to represent Sa’id bin Zu’air, a religious academic who had been re-arrested in April 2004 for remarks he made on Al Jazeera television (see chapter XI). The judge rudely rejected him, he said, and officials “dragged me out of court.”²⁷¹

The government can block attempts to retain counsel by not certifying a lawyer’s power of attorney. A notary public must certify the power of attorney for lawyers to act on behalf of a detainee (a judge can do the same, but only at a hearing).²⁷² Human Rights Watch spoke to a relative of a detainee who, together with four other families, received a notary public’s certification to appoint Isma’il as legal counsel for their sons and relatives in Buraida’s mabahith prison.²⁷³ When 10 relatives of other detainees also tried to obtain a notary’s certification to retain a lawyer, however, Fahd al-Ghammas, the head notary public of the Second Court of Buraida, informed them that he had received a telephone call instructing him to deny such certification. When these relatives subsequently attempted to obtain the certification from the court notary public in the neighboring town of Bikiriya, that notary public first made a phone call before informing them he was unable to issue certification. Isma’il told Human Rights Watch that “it is normal for a notary public to agree to a certification of power of attorney in another jurisdiction.”²⁷⁴ Isma’il and Sa’ud are two of the few lawyers to have certified powers of attorney to act on behalf of mabahith detainees, and still have been denied access to their clients.

Salih al-Luhaidan, Saudi Arabia’s chief judge, denied that defendants were unable to retain legal counsel, but he heavily qualified his view as to when the appointment of lawyers was necessary or justified. Al-Luhaidan told Human Rights Watch that “legal representation is allowed in case of [existing] evidence proving innocence. Take for example the case where a drunkard is accused of consuming alcohol. If he can prove that no alcohol was consumed and if he can provide witnesses and if he did not confess to the crime, then a lawyer can represent him in court.”²⁷⁵ Al-Luhaidan later in the interview provided another example, saying “If the case involves harm done, a murder or a theft, then it does not require a lawyer, but it requires witnesses, evidence, and for the individual to defend himself.”²⁷⁶ Al-Luhaidan basically said that only those who do not really need a lawyer—those with proof of their innocence—are entitled to retain one.

Sa’id, a detainee in al-Ha’ir prison told Human Rights Watch, “I was arrested with the others, but I’m the only one who had a lawyer. My father arranged for it, but they never let me talk to my lawyer. I’m trying to appeal my case because I was never allowed to see my lawyer.”²⁷⁷

Human Rights Watch is unaware of any case where a suspect detained by CPVPV agents was able to promptly retain legal counsel. Faisal, a businessman who runs a liberal website and frequently intervenes on behalf of those in trouble with the Commission, told Human Rights Watch that in October 2006 the Commission arrested a person who then tried to secure Faisal as his personal representative. The Commission pressured the detainee to cancel his appointment of Faisal in exchange for letting him go.²⁷⁸ Café owner Khalid, who was sentenced to flogging for challenging the CPVPV (see above), also dismissed Faisal in exchange for the lashes not being implemented. In the case of the death of Ahmad al-Buluwi in the CPVPV’s offices following beatings during interrogation in May 2007, Buluwi’s family was pressured into not appointing Faisal to represent them in legal proceedings.²⁷⁹

Asad, the brother of Ja’far, whom the police arrested six years after a court had sentenced him for insulting the Prophet’s companions, but never implemented the sentence, spoke of having little confidence that a lawyer could clarify the legal situation following his brother’s arrest on February 13, 2007.²⁸⁰ He told Human Rights Watch,

Ja’far was driving with his family to Kuwait. At the border, they arrested him. A police car drove Ja’far to Qatif where he was put in jail. We don’t know the reasons for the arrest. He has been there for two days now. There is no prosecutor or arrest warrant. We don’t try to get a lawyer. A lawyer is expensive, and in this country, lawyers have no power.²⁸¹

The mother of Nawwaf told Human Rights Watch that she had not tried to hire a lawyer, “I am a woman, we are in Juf, and we are poor. What do I do with a lawyer? I don’t know where to find one and couldn’t afford one either. And I don’t know what a lawyer can do for me.”²⁸²

Right to Bring and Cross-examine Witnesses

The right to a fair trial includes the defendant’s ability to bring witnesses to testify on his or her behalf as well as to challenge the testimony of prosecution witnesses under equal conditions. The UDHR sums up these aspects as the right to a “fair and public hearing.”²⁸³ Article 14.3(e) of the ICCPR provides specifically for the right “[t]o examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” Article 16(e) of the Arab Charter on Human Rights repeats this ICCPR text verbatim.²⁸⁴

Saudi law protects the right to bring and cross-examine witnesses during trial. Article 164 of the LCP provides that “Each of the litigants may request to call any witnesses and review evidence they may present and request taking a specific action in connection with investigation proceedings. The court may reject such a request if it considers that it is intended for delay, malice, or deception, or that granting such a request is not probative.”²⁸⁵ Article 163 gives defendants the right to cross-examine witnesses: “Each of the parties may cross-examine the witnesses called by the other party and discuss its evidence.”²⁸⁶ Article 175 gives “The Prosecutor and all litigants [the right], at any stage of the proceedings, [to] contest any part of the evidence as being forged,”²⁸⁷ although they risk punishment for perjury as a result of false accusations of forgery.²⁸⁸

Witness testimony and confessions are often the primary evidence in Saudi criminal trials. Saudi law contains provisions aimed at ensuring that evidence based on witness testimony cannot be distorted and that court testimony alone is entered as evidence. Article 156 of the LCP provides that the court record of hearings include witness testimony, and Article 180 advises the court to “base its judgment on the evidence produced during the trial,” and not on other knowledge of the case.²⁸⁹ Failure to observe proper procedure is grounds for the trial court to dismiss a case, but only if such an “action includes an essential defect that cannot be corrected.”²⁹⁰ The inability to produce or cross-examine witnesses may well constitute such an irremediable action, since it almost invariably skews the evidence.

Article 168 of the LCP generally excludes children from giving testimony: “If a witness is a child or his testimony is otherwise inadmissible, his statement shall not constitute a testimony. However, if the court considers that such testimony could be useful, it may proceed to hear that witness.”²⁹¹ International human rights standards support the right of children to be heard in particular where a case has direct implications for that child, and, where it is considered appropriate for a child to testify, encourage states to provide children with a safe environment to do so.²⁹²

The broadly worded Article 168 excluding “otherwise inadmissible” testimony opens the door to discriminatory admission of witnesses. Under Saudi Arabia’s interpretation of Sharia, a Muslim woman’s testimony is not generally accepted in criminal cases²⁹³ and is worth half the testimony of a man in civil suits (see Appendix).²⁹⁴ Furthermore, Saudi Arabia’s interpretation makes the testimony of non-Muslims admissible only in cases of “necessity.”²⁹⁵ Saudi Chief Judge Salih al-Luhaidan appeared to deny even this possibility when he told Human Rights Watch that the requirements to be a witness include that “the individual must tell the truth and must be religious. The witness must be of the faithful [Muslim].”²⁹⁶ Such restrictions violate human rights law prohibiting discrimination on the basis of gender or religion and violate the right to a fair trial, especially if unequally applied in favor of the prosecution.

During the investigation of a crime, the prosecutor has the authority to determine which witness testimony should be entered into the file. Article 28 of the LCP does not oblige the prosecutor to devote attention to exculpatory evidence, but only to “those who may possess information with respect to facts and perpetrators of crimes.”²⁹⁷ Prior to the trial stages, the defendant has no opportunity to present exculpatory witnesses. Compounded with the inability to access the prosecution’s file and the extremely short notices afforded defendants before court hearings (see chapter V, section “Right to Adequate Time and Facilities to Prepare One’s Defense”), the prosecutor’s powers to decide which witnesses to include significantly impinge on a defendant’s right to bring witnesses in his or her defense. If a private person is party to the criminal suit, the prosecutor must justify denial of the request of either plaintiff or defendant to hear a witness,²⁹⁸ “unless he considers that their testimony would be useless.”²⁹⁹ Articles 98 and 99 of the LCP give litigants the right to comment on witness testimony during the pretrial investigation. The investigating prosecutor conducts these depositions as he sees fit, either separately or jointly.³⁰⁰ In court, however, witnesses testify separately, and, where necessary, are kept apart.³⁰¹

Regulations for the Appeals Court do not contain a review of sound procedures at the trial stage. The Appeals Court assesses the “matter of the appeal on the basis of the evidence included in the file of the case.”³⁰²

Defendants’ ability to bring and cross-examine witnesses is already curtailed by the potential barriers on calling non-Muslim or female witnesses, the absence of a public defender program affording them legal advice, and their own lack of legal expertise. Human Rights Watch also received testimony from individuals whom a judge refused the right to bring or cross-examine witnesses, without giving an adequate explanation. One such case features in the Prologue to this report.

Another prisoner, Zuhair, told Human Rights Watch that police arrested him and a fellow Ethiopian, Maisara, in June 2006 for being in a fight, and told him that a Bangladeshi man had filed a claim against him. Police officers interrogated him and brought him face to face with the Bangladeshi man, who, according to Zuhair,

told the police and me that I was one of the onlookers of the fight and that I didn’t participate in it. After three months, [Maisara] and I went to trial. The Bangladeshi man did not show up in court but sent a representative and I did not have the opportunity to ask the judge to see him. The judge sentenced me to six months and 300 lashes on June 12, 2006.³⁰³

The other Ethiopian, Maisara, confirmed this account, and added, “There was no translator in court. Zuhair understands a little and translated for me, because I did not understand.”³⁰⁴

Mu’ammar told Human Rights Watch that members of his family had accused him of apostasy, and that the case went to court. During the trial, his brothers testified that he “spoke like a Christian when someone dies” and that he had been “an infidel for a long time.” He said his family members forced his Indian driver to testify to his un-Islamic behavior. He also said that prior to being arrested he had lived in Jeddah, but “the judges refused to bring my witnesses from Jeddah,” who could deny such behavior. He said the judge sentenced him for unspecified “commission of sins” (irtikab al-ma’asi).³⁰⁵

A middle-aged Saudi man, Ziyad, described his trial on drug dealing charges to Human Rights Watch. He said that the judge in his case

ordered me to keep silent and I was afraid to speak up so that he would not give me a harsher verdict. I asked them to bring [a co-defendant, under whose car the police found drugs], who had three prior convictions, as a witness to prove that I had no connection with drug dealing. He told me that he involved me in his trial in order to ease the charge on himself, because otherwise he may face the death sentence.³⁰⁶

A young Saudi currently serving an eight-year sentence in prison told Human Rights Watch how the judge disallowed evidence and the cross-examination of witnesses. Information stored or not stored on a mobile telephone was important in identifying the culprit in this case since it the mobile phone belonging to the purported culprit contained a video of the crime shot from the phone. “My lawyer got the [phone] company to produce all the [information] from my cell phone,” the young man told Human Rights Watch,

but there [was no incriminating information] on it. Judge [name withheld] did not look at the evidence the lawyer submitted. I also asked to present witnesses who could testify to my alibi, like the vice president of the [workplace where I was, name withheld], but the judge refused. During the trial, the judge asked, “Where were you [at the time of the incident],” and the prosecutor produced statements of a witness who said he saw me at the scene of the crime. But the same witness said in the same trial that he was tortured into confessing that he saw me. The judge admitted this witness’s written statement and did not inquire into the circumstances of the confession.³⁰⁷

He pointed out that that the evidence implicated a culprit wearing a thob (common Saudi male dress), whereas he usually wore jeans. Human Rights Watch also spoke with the witness who had given a statement to the prosecutor that he had seen the defendant at the place of the crime. This witness confirmed to Human Rights Watch that he had never seen the defendant before and that he was coerced into making the incriminating statement when he himself was arrested for participating in the same crime, which he also denied.³⁰⁸ Human Rights Watch also spoke to the mother, brother, and lawyer of the first inmate, who confirmed his account.³⁰⁹

Ja’far also believes he received an unfair trial due to the fact that the judge lent credibility to only one witness to his alleged crime, a witness who at the same time was the official who initiated the criminal charge of “insulting the companions” of the prophet against him. Ja’far was unable to challenge the testimony of this prosecution witness in cross-examination, on whose account the entire case against Ja’far rested. This witness did not appear in person to testify or to be cross-examined and the judge did not permit Ja’far to produce a second witness, also an official, who he said could have exonerated him.³¹⁰

Ja’far told Human Rights Watch that Judge al-Khudair

read the charge to me. I told the judge to bring [the witnesses], but then the prosecutor said that there’s only one witness, the same [person who arrested me]. I asked for the other … official to come, because he was there [at the time of the incident] and he knew that I didn’t say these things, but the judge did not bring him either.³¹¹

Irfan, a Pakistani man in prison for over six years, told Human Rights Watch that he tried to obtain a verdict of insolvency from the court after the judge sentenced him to prison or payment of US$162,000 in compensation to his employer for embezzlement. Irfan said the judge told him to bring three witnesses, two of whom should be Muslims with an honorable record (muzaki) in order to testify to his insolvency, but that he received a court summons two months later, “where my employer brought three witnesses to testify that I was rich.” Before going to court, Irfan said that Ahmad Abdullah al-Shahrani, the head of the Jeddah General Prison, where he was imprisoned, had selected these witnesses when he learned of al-Irfan’s request to produce witnesses to testify to his insolvency. Al-Shahrani intimidated Irfan by threatening to send him to a prison far away if he did not cooperate. Irfan said the three witnesses, all fellow inmates, each got $810 for their testimonies.³¹²

Reasonable Doubt

The Arabic word commonly used to describe a judge’s actions during trial is fassala—literally “to make separate.” In seeking the truth and adjudicating responsibility, the judge must separate fact from fiction and remain open to arguments and evidence supporting a defendant’s innocence as well as guilt. Under international standards of fair trial, a defendant does not have to prove his innocence: the burden is on the prosecution to provide evidence that proves the guilt of the defendant, and to prevail the defense only has to cast reasonable doubt on those claims of guilt. ’Azzam told Human Rights Watch that, in Saudi Arabia’s prevailing legal tradition, the burden of proof remains on the prosecution. During the first session of a trial, he said, “the prosecutor has to list all the evidence he has, because he has the burden of proof.”³¹³

In practice, and as a review of Saudi court verdicts demonstrates, judges repeatedly convict defendants despite their “doubts” about the defendant’s guilt. Lawyer Hisham explained to Human Rights Watch that where a “judge has doubt about the criminal responsibility, he will issue a discretionary [ta’zir] verdict.³¹⁴ Under ta’zir sentences, a judge is free to determine the punishment.³¹⁵

Guilty as charged, not as proved

A blatant example of the divergence of the Saudi criminal system from the rule of law is the manner in which judges have the capacity to punish a defendant “on a discretionary basis” even though the prosecution case before them is not proven. This is linked to the vague nature of charges, and reflects an approach to justice, that, while a defendant facing trial may be acquitted of an offense, they are surely “guilty of something.”

Jeddah lawyer Naji told Human Rights Watch about a recent case in which he defended a client against charges of drug consumption and dealing. His client admitted to the consumption charges, and to “stocking up” on a large number of pills, but denied dealing. “There was no evidence that he was a drug dealer other than the large amount of pills. The judge sentenced him for dealing, although he admitted there was doubt about the guilt.”³¹⁶

Muhsin told Human Rights Watch about other cases where doubt overshadowed evidence of guilt for the crime with which the defendant was charged. In one case a prosecutor had brought charges of sodomy against a man, claiming the alleged crime had taken place in a restaurant, in front of witnesses. The defense was able to question the prosecution witnesses who admitted that they had heard the story from a friend but had not themselves been present. Nevertheless, Muhsin said, the judge disregarded this exculpatory testimony.³¹⁷

The lawyer for a number of defendants in the so-called Renaissance Bridge case (see above) shared with Human Rights Watch the verdict of the final ruling the Riyadh General Court issued in January 2006.³¹⁸ In their majority ruling, two of the three judges stated, “The crime of armed robbery by the accused has not been proved to us, wherefore we have decided to punish them on a discretionary basis” to prison and flogging. According to the judges, a crime had taken place which, beyond the injury to the victim, “depleted the safety and stability of the believers … necessitating a personal deterrent against the accused and a general deterrent for all people.” The verdict mentions that the only evidence against one defendant—whom Human Rights Watch interviewed—was his co-defendant’s statements during interrogation.³¹⁹

In a murder trial verdict handed down by judges in the ‘Asir province’s court in Abha, the verdict and the defendant’s testimony reveal that the judges were not concerned with whether there was proof of intentional murder, but whether the defendant’s claim of self-defense was disproven. Human Rights Watch spoke to the defendant Qais and his brother about the incident that 12 years earlier landed then 16-year-old Qais on death row, where he remains today, even though the judges twice reversed themselves in their verdict. He told Human Rights Watch in July 2007 that a new judge in the Abha court had agreed to review the case.³²⁰

After dark on October 27, 1994, 16-year-old Qais, who is partially paralyzed on his left side, accepted a lift from a man in a car. The man took Qais to an abandoned building, where two other men were present. One of the men began to assault him. Qais told Human Rights Watch, “We were on the ground and I pulled out the knife that I carried to defend myself because of my disability, and I stabbed him, I don’t know how many times. He fell to the ground and I ran away,”³²¹ Qais went to the police station, reported what had happened, and found himself detained and transferred to Abha juvenile reformatory after one week.

Qais said he had no legal representation in court. When he was called to the judge’s chambers, he came face to face with a representative of the deceased, who told the judge he wanted Qais executed in retribution. According to Qais, the judge remarked that such a verdict was not possible in cases of self-defense. In the second session, according to Qais, the brother of the deceased man (the man who had initially offered Qais a lift), appeared in court, and freely admitted that the deceased had asked him to bring “any person, with the intent to rape that person.” In the third session, the third person present at the incident, who said he was the owner of the house, also admitted that the intent was to rape Qais, but that he had nothing to do with the assault. In the last session, however, before the judges issued their verdict, the brother recanted his earlier testimony that there was a prior plan to rape Qais.

Qais said that he did not know what Saudi law said about self-defense. He later engaged a lawyer in Riyadh who, he said, “did not do anything.” Qais said that the court did not determine his age or assess his mental or physical capacity.

A copy of the verdict bears out Qais’s recollection. It notes that the deceased man’s brother testified that the deceased “was drinking perfume and that he took [Qais] to a dark room and that [Qais] never met [his brother] before that day as far as he knows.” The brother also confirmed his testimony that the deceased’s intent in taking Qais to the room was to rape him. The verdict shows the owner also testified to this. Nevertheless, the judges, on January 17, 1996, ruled that Qais was an adult at the time of the crime and could have refused to enter the room or sought help from the other two men, and that the victim’s family was therefore entitled to retribution (qisas) in the form of Qais’s execution.

On August 18, 1996, the Court of Appeals reversed this decision, finding that Qais could not have extricated himself from his predicament. On January 28, 1997, the judges of the first court accepted the Court of Appeals’ finding, ruling that the deceased person’s family was entitled to blood money, but not retribution. After King Fahd intervened and ordered a review of the case on behalf of the dead man’s family, the Supreme Judicial Council on February 25, 1998, found that the Court of Appeal decision omitted that Qais went with the man willingly, that he had a knife, and that he did not call for help, and consequently reinstated the murder charge. On August 31, 1999, the ‘Asir court accepted the Supreme Judicial Council’s finding, explaining that previous conflicting sentences were the result of a lack of a comprehensive investigation involving all parties, and sentenced Qais to death.³²² The other men were not prosecuted for attempted rape.

In another case, Judges Muhammad Al Sulaiman, Salih al-Zahrani, and Abdullah Al Dawud convicted Ramon of the Phillipines of intentionally killing a Saudi national, Fadi, and sentenced him to death in retribution (qisas). According to the appeal that lawyer Sultan al-Hujailan filed, the court did not adequately prove intentional murder. In fact, al-Hujailan maintained, Ramon had killed Fadi in self-defense.

Following an evening with friends at Fadi’ s house, where they drank whiskey and watched pornographic videos Fadi provided, Fadi and Ramon had a fight when Ramon refused to smoke hashish and get undressed. Ramon claimed that Fadi stabbed him in the neck with a knife, after which they fought vigorously until Ramon got hold of the knife and stabbed Fadi. He then escaped from Fadi’s house by breaking the locks, which Fadi had previously bolted, and fled to the home of his cousin, who delivered him to the Filipino consulate in Khobar about an hour later.

Ramon told Human Rights Watch that after an hour the vice consul convinced him to surrender to the police, but that he did not go entirely voluntarily because he was in no state of mind to make informed decisions. At the police station, Ramon said, they only took his name and checked him into a hospital, where, 30 minutes later, police came back, shackled him, and began asking questions over the next four days. Police then took Ramon back to the scene of the crime, in Khafji, and asked him to conduct a re-enactment, which they filmed. The police had asked him three questions, he said: “Why did you stab [Fadi] in the back? Why did you follow him into another room? And, do you have any witnesses?” Ramon said he could not answer the first two questions other than by pointing to his inebriated and highly emotional state of mind, having been attacked with what he believed was intent to rape him. Thereafter, they sent Ramon to Dammam General Prison where, he said, he spent two years in solitary confinement.

Ramon said that the Philippines consular officials visited him every six months or so, and promised to obtain a lawyer, but that the fees demanded were too high. After two years, his trial began. Ramon told Human Rights Watch that “it was a complete surprise to me” when prison officials took him to court. In court, two judges presided over the trial with Ramon, his two police escorts, the father of the victim, and a clerk present. “At first, they asked me to speak. I spoke for about 30 minutes and told them what happened,” Ramon said. “Then they compared what I said to my written statement and found it was true. Then the judge asked the father if he would forgive me, but he said no. I had no lawyer or consular representation.” Over the next three weeks, with one session per week, there were few developments and Ramon did not speak at any of the sessions. Salih al-Zahrani, one of the two judges at one of the sessions, told the father of the victim to forgive Ramon because he was innocent. In the fifth and last session, the Philippines vice-consul attended but did not speak. In the final session the judge, addressing the verdict to the vice consul, sentenced Ramon to death.

At no point did the judges inform Ramon of the charges of intentional murder or clarify to him the legal differences between intentional murder and murder in self-defense. Ramon told Human Rights Watch that the court asked him for witnesses to prove his innocence.³²³ Lawyer al-Hujailan’s appeal also notes, “The Court enquired if the accused has any proof or witness that what he did was simply to defend himself and his honor from [Fadi], which he negated.”³²⁴

Innocent as charged, but still convicted

Muhammad al-Suhaimi, a middle-school teacher of Arabic, was charged with apostasy. He was found not guilty. However, the judges then proceeded to sentence him “on a discretionary basis,” for “un-Islamic behavior,” but not for any specific crime. In the eight-page verdict dated March 9, 2004, the three judges extensively cited testimony of 12 witnesses, teachers and students, who claimed he had made various statements that were un-Islamic. Al-Suhaimi presented witnesses who testified that he is an observant Muslim, albeit a modern thinker, but not concerning the articles of the creed.

The judges ruled that they would “shield the accused from the crime of apostasy against God [hadd al-ridda]” but that

Given what the accused pronounced in front of students in school, and given that he is a teacher and students are in a position to meet him and receive his knowledge, … and given his duty to preserve the trust he has taken upon his shoulders … those [actions] deserve punishment as a deterrent to him and as an inhibition to others … and we decided … to discipline him [ta’ziruhu] with a prison term of three years … and flogging of 300 lashes.³²⁵

Public Trial

Defendants have a right to be tried in person and in public.³²⁶ International law considers the public nature of trials to be the norm, an essential safeguard for the right to a fair trial. The court may close proceedings to the public or interested parties only for narrowly defined reasons.³²⁷ Article 155 of the Law of Criminal Procedure authorizes the court to close proceedings “for [unspecified] security reasons, or maintenance of public morality, if it is deemed necessary for determining the truth.” The UN special rapporteur on the independence of judges and lawyers, following his visit to Saudi Arabia in 2002, wrote that he “is concerned that the ability to close court hearings in circumstances where it is deemed necessary for determining the truth [...] is too broad in scope and undermines the transparency of the court system.”³²⁸

International law also provides that court verdicts should be made public: “Any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”³²⁹ Saudi law does not fully comply with this requirement. Article 182 of the LCP specifies that “The judgment shall be read in an open session at which the parties must be present, even [if] the case has been considered in closed sessions.”³³⁰ Article 183, however, only requires the court to “formally communicate [the judgment] to whomever the court deems appropriate.”³³¹

In practice, few trials appear to be open to the public, and Human Rights Watch does not know of any trial that members of the media attended. For example, Al Jazeera reported eyewitness accounts of the December 1, 2004 hearing in the trial of three reform advocates, who said that police had cordoned off the court house, arrested seven friends and supporters of the accused (including two journalists), and planted plainclothes policemen inside the courtroom to give the pretense of an open hearing.³³² The BBC reported in December 2004, “In October, a judge adjourned the trial of the three reform campaigners after they refused to answer questions because the hearing was being held in secret,” adding that “the son of one of the accused said they had to be taken by force into the courtroom on Wednesday and did not speak once in court because they insist on a public hearing.”³³³ Five persons present that day independently and separately confirmed this account to Human Rights Watch at various points since August 2005.

During its visit to Saudi Arabia in December 2006, Human Rights Watch attempted to attend court hearings in Jeddah on December 9, and in Najran on December 13. In Jeddah, the head of the Partial Court, Judge Abdullah al-‘Uthaim, refused to give permission, saying “you cannot enter court sessions.”³³⁴ In Najran, an armed guard refused to allow Human Rights Watch to attend an ongoing session “because it is a criminal case.”³³⁵ A court clerk told Human Rights Watch that “you are the first one to want to attend a trial.” The clerk later asked the two judges for permission, but they, too, refused, without providing a reason. In a conversation after the hearing ended the judges explained to Human Rights Watch that the case involved a murder.³³⁶

(Concern about transparency in Saudi courts goes beyond the closed trials. According to a report in Arab News, Abd al-‘Aziz al-‘Uwaishiq gave a presentation at the Riyadh Economic Forum in December 2005 in which he deplored “that there was no way that members of the public could possibly know what the regulations were,” since they often remained unwritten. In particular, “Even though the Council of Ministers issued a ruling in 2002 that the Ministry of Justice should announce the results of all its religious judicial hearings, this has not been done. The paper also said that judicial and non-judicial committees rarely announced their findings and regulations.”³³⁷)

Double Jeopardy

International law protects a person from being “tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”³³⁸ In Saudi Arabia, a verdict is final if the party against whom a verdict is rendered accepts it.³³⁹ In private rights cases, where other individuals, but not the state, pursue civil or criminal suits, a grant of pardon by the plaintiff, and, in public rights cases, an amnesty by the ruler, also terminate criminal action or a sentence.³⁴⁰

Before a verdict becomes final, one or both parties to a suit at law, including the public prosecutor, can decide to appeal within a period of 30 days of the judge’s issuing the verdict to the Court of Appeals, which may refer the case back to the lower court with a recommendation or reversal.³⁴¹ Otherwise, the Court of Appeals issues a final verdict where the “judgment is complete in every respect, and if urgent action is deemed necessary.”³⁴² The Court of Appeals automatically reviews

death sentences, and sentences of amputation.

The Law of Criminal Procedure makes an exception for appeals by the prosecutor or the civilian plaintiff (seeking a criminal conviction). Under Article 206 of the LCP, “Any of the litigants [have the right to] apply for reconsideration of any final judgment imposing punishment” in five situations relating to the availability of new evidence.³⁴³

Fahd told Human Rights that the mabahith of Najran arrested him and his brother Shakir in his home in June 2001. Police found an unlicensed and unloaded rocket-propelled grenade launcher (RPG) in his home. Fahd admitted to buying the weapon illegally. The judge sentenced Shakir to four years in prison, and Fahd, another brother, Musa, and a fourth defendant (not a family member) to five years. Fahd told Human Rights Watch,

A representative from the Ministry of Interior in Riyadh came two months before the end of my brother [Shakir]’s sentence to retry the case before the Ruler [Wali al-Amr], so that we would receive the “right” sentence. We told the judge that we have been tried already and that he doesn’t have the right to try us two times for the same crime.³⁴⁴

Judge Muhammad al-`Amir of Najran, in a decision issued on May 12, 2006, wrote that he decided to transfer the case of Fahd, Shakir, and the third brother, Musa, to the appeals court, following the initial verdict issued by Judge Abdullah al-Dawud on November 29, 2001. In that verdict judge al-Dawud had convicted Musa for acquiring a weapon, Shakir for co-ordinating between Musa and Fahd, and Fahd for purchasing a weapon in Yemen. As a justification, judge al-`Amir wrote that he had studied a letter by the head of the Supreme Judicial Council (No. 4/2663 of February 11, 2004) concerning a case similar to this.³⁴⁵

Malfi al-Harbi detailed in al-Riyadh newspaper another case where a court retried and convicted a young man who had already served his prison sentence, because the judge considered the verdict too light. According to the report, the General Court of al-Rass issued two verdicts in the same case for the same defendant. One year after he had served his four-month prison sentence and flogging of 90 lashes had been carried out, for a transgression of public morality, the court sentenced him again for the same crime, this time to four years and 700 lashes.³⁴⁶ The judge based his decision to reopen the case on a letter with observations on the case by the head of the Supreme Judicial Council, dated September 27, 2006, by which point the first sentence had already been carried out.³⁴⁷

Summary Justice, Perverted Justice

In several cases documented below, detainees faced summary justice even when they had spent considerable time in prison before the court sentenced them. Detainees sometimes did not know the charges against them, and, when appearing in court faced summary rulings against them. The failure to inform defendants of the charges is against Saudi law.

The mabahith arrested Badi around June 2002, in Ra’s Tannura in the Eastern Province, and took him to their detention facility in Dammam. Badi was a successful businessman running a technical support company for construction work with contracts with Aramco, the Saudi oil company, and others. He told Human Rights Watch that at first he had no idea why the mabahith arrested him. The mabahith investigator proceeded to question him about a phone interview he had given to Al Jazeera a year-and-a-half earlier, at the time of mass arrests of Ismailis in Najran. Badi, who is Ismaili, said that he had contacted Al Jazeera when he got news of the events in Najran and was subsequently persuaded to give an interview.

Badi described what happened after his arrest:

I was taken to a cell, alone, underground, and talked to nobody except for my interrogator and, twice, the judge. It was miserable and I began talking to the ants in my cell. You couldn’t go to the toilet more than twice, you couldn’t drink water when you wanted, so every time the soldier let me, I drank as much as I could… After two months of interrogation, I was taken to the judge. Up to that point, the interrogator had not formally charged me. The judge asked me to confirm that I had talked to Al Jazeera. I did. Only then did the prosecutor present charges [of disobeying the ruler].³⁴⁸

Luqman, also from Najran, experienced a similar delay in being charged. He told Human Rights Watch that the authorities issued an arrest warrant for him in Narjan around May 2001, but that he lived in Riyadh and was not detained until two years later, in May 2003. He said that in five meetings in Riyadh with Assistant Minister of Interior for Security Affairs Prince Muhammad bin Nayef during the period 2001–2003, he “just asked why I was writing bad words about the government, but he didn’t arrest me.” Luqman explained that he had written “more than 20 telexes to the [Najran] Governorate and to the Ministry of Interior complaining about the settling of Yemeni tribes in the Shurfa area [of Najran].”

After two years in Riyadh, Luqman continued, “I was finally arrested in Riyadh, transferred to Najran after three days, and spent one month there at the mabahith detention facility. Then they flew me to Jeddah to meet a high-ranking official (wakil) in the Ministry of Interior, al-Rubai’i, who asked me the same questions about my writings. I stayed one month [confined to] a hotel there, and then was flown back to Najran, where I stayed another month [in detention] before being taken to court.”³⁴⁹

Ebot, a Cameroonian national working without authorization in the country for six years, told Human Rights Watch that in January 2006 a Saudi man he vaguely knew had asked him to come to the Sofitel Hotel on Palestine Street in Jeddah to give information to the police about fellow Cameroonians whom the police were seeking on suspicion of fraud involving currency exchanges. He came voluntarily, he said, but the officers arrested him without informing him of the reasons. After three months of interrogation, beatings, and threats of sexual abuse, he said he agreed to sign a “compromise” statement admitting to receiving a few hundred Riyals for translation services for a fraudulent scheme of currency exchanges. Shortly afterward police from the criminal investigation department took him to Jeddah’s Partial Court, where an official put his fingerprints on the statement. He did not see a judge, and, as of February 2007, he did not know what crime, if any, he was charged with or whether his arrest came as the result of a private claim against him.³⁵⁰ As of November 2007, Ebot had not been sent to trial.

Sharif, a Nigerian working without authorization in Saudi Arabia, described his experience in court on charges of making a fraudulent business proposition. At Sharif’s third court session in April 2007, for the first time a translator was available to him, “who read from an Arabic paper with a police logo on it. But his English was so bad that I told him I didn't understand. The translator then said that the judge said that ‘there is no need for you to understand; an answer of just “yes” or “no” to the charges is sufficient’.” Sharif described what happened then:

After about six weeks I was taken to a secretary at the court to put my fingerprint on a large piece of paper … and the secretary said, “It’s your sentence.” I was angry and demanded to see the judge. The judge told me, “Accept your verdict because then you will be included in a big [expected] amnesty.” I said that I could not accept the verdict, because I did not understand anything at the court session. They brought a translator, who this time spoke good English, and who told me that the verdict said that my sentence was three years. I did not accept it, and the judge said it would go to the Court of Appeals for review. This was May 26. I have not heard anything since.³⁵¹

One detainee in al-Ha’ir Correctional Facility, Sa’d, described to Human Rights Watch what happened between his arrest and trial. “I’ve been here for theft and fighting. I spent two months in jail, then I was held here [at al-Ha’ir] for four months before I saw a judge. I never had a lawyer. They just showed me a paper and told me to sign it, but I don’t know what it said. They said I confessed, and then the judge sentenced me to five years in prison.”³⁵²

In October 2006, a judge sentenced a young woman from Qatif to 90 lashes for illegally mingling with the opposite sex. The young woman stated that she had met a man she vaguely knew in his car in a car park to retrieve a photograph of herself. She had recently married and did not want another man to have her picture. A gang of men then attacked them both, and brought her to another location, where they raped her. Up to the point of the judge’s verdict, she was unaware of facing any charges herself, she told Human Rights Watch, although the judges had questioned why she had left the house at all in the first place.³⁵³ In November 2007 the judges of Qatif General Court increased the woman’s sentence to six months in prison and 200 lashes. Court officials cited as reasons that she and her lawyer had spoken to the media. This second ruling greatly increased international attention to the case. On December 17, King Abdullah canceled the sentences of the young woman and the young man, but let their guilty conviction for illegal mingling stand.