By clicking on the questions below, you can access straightforward practical answers to the questions we are most frequently asked by people accused of criminal offences, particularly if they have been arrested outside their own country.
If you are currently outside the country where you are being accused, we have information to help you decide on your best options.
This can be accessed here.
We also have thematic guidesthat cover broader issues where we have developed particular expertise through our campaigns work, such as the European Arrest Warrant, pre-trial detention, INTERPOL alerts, and prisoner transfers.
These can be accessed here.
The information below was last updated in March 2017.
The information contained here is provided for information purposes only and is not intended as legal advice, nor does it constitute legal advice. Whilst we endeavour to keep the information up to date and correct, Fair Trials makes no representations or warranties of any kind, express or implied about the completeness, accuracy, reliability, suitability or applicability to individual cases of the information contained here. Any reliance you place on such materials is strictly at your own risk. Fair Trials disclaims any liability to the fullest extent permissible by law for any loss or damage of any kind arising from the use of the information provided.
Dos and Don’ts After Arrest
1. I have been arrested. What should I do?
1.1 Know your rights
Your rights upon arrest will depend on the laws and practices of the country you have been arrested in. Your first step after arrest must be to get information about these rights:
Ask arresting officers to explain your rights to you in a language you understand.
Ask for a written statement of your rights in your own language. This may not always be available as not every country provides written information on rights.
When necessary, ask questions to clarify your rights with the arresting officer, or your lawyer when you speak to him/her. For example, you should ask:
- Do I have a right to a lawyer? Will the state provide me with a lawyer and pay for this?
- When can I see my lawyer?
- Do I have a right to remain silent during police interrogation? Could my silence be used against me in the criminal proceedings, for example, referred to at my trial?
- Do I have a right to a state-funded interpreter and to a translation of all (or some) written documents from the time of my arrest?
- Do I have a right to contact my family?
- How long can I be held by the police before I will be taken before a judge?
If you were arrested outside your own country, your consulate or embassy should be notified of your arrest. You should clarify the following with arresting officers:
- Has your embassy been notified of your arrest?
- If not, when and how will your embassy be notified of your arrest?
- Can you contact your embassy?
- Will they be allowed to visit you?
1.2 Share important details of your arrest with friends and/or family
If you can contact your family make sure you tell them anything important, including:
- Date and place of arrest;
- Where you are being detained (include your prisoner number if possible);
- The names of arresting officers (if possible);
- The reason for your arrest and charges against you;
- Important dates and time-limits in your case (see below); and
- The name and contact details of your lawyer (if you have one) and of your consular representative (if applicable).
(Please note: In some countries you may not be able to share this information with family members. If this is the case, pass these details on to someone you can trust to forward to your family (this may include your prison social worker, your consular representative or your lawyer)).
Decide which family member will be in charge of your case and will be the main point of contact for your lawyer or others that may be helping you. You should also agree what decisions you are happy for them to make on your behalf. This may be particularly relevant where it is difficult for your lawyer to keep in regular contact with you and where your lawyer can be contacted more regularly by your family.
1.3 Instruct a lawyer
The single most crucial thing to do after arrest is to obtain legal advice from a competent local lawyer. However, do not be rushed into appointing a specific lawyer on the advice of anyone with a vested interest in the case. Please refer to questions 10-24 for further guidance. You may wish to ask your family and friends to help you find a good lawyer. If you have been arrested outside your own country, your embassy may also be able to help by, for example, providing you with a list of local lawyers who speak your language.
1.4 Make the most of the time with your lawyer
Take full advantage of the first meeting with your lawyer and ask him/her all relevant questions (refer to questions 1 and 21-24) as soon as you have an opportunity to speak to him/her. Do not wait until your next meeting with a lawyer as in some countries your lawyer may be unable to visit you soon, even if s/he says s/he will. It can be helpful to write down the questions beforehand and make notes of the answers during your meeting. Check with your lawyer if these notes could be taken by police or prison officials and used against you.
Give your lawyer all the information you think will help with your defence and ask him/her what other information will make your case stronger.
Make your lawyer aware of any evidence that may need to be preserved before it is lost (for example CCTV evidence, flight records or hotel records). You should also tell your lawyer if there are any witnesses who can support your defence as soon as possible so that if they are non-resident, s/he can contact them before they leave the country. (Please refer to questions 18-23 for further guidance.)
1.5 Use an interpreter
If you do not speak the local language, do not rely on your own knowledge of the language unless you are completely fluent. Tell the arresting officers and your lawyer that you need an interpreter.
Some countries provide state-funded interpreters for arrested persons. You should ask your lawyer, or the arresting officers, if the state will provide you with one. When one is not provided for you by the state you should instruct a privately-funded interpreter (your consulate may be able to provide you with a list).
Ask family and friends to assist you with this immediately. You must ensure the interpreter is independent and, ideally, professionally qualified.
Be wary of people who are not professional and independent interpreters when they offer to interpret for you.
Do not take legal advice from interpreters or let them influence the way your case progresses. You should base all your decisions on advice from your lawyer, even if you have to wait for this advice.
1.6 Be wary of fellow prisoners
Fellow prisoners can be a great source of comfort. However, in some countries, other prisoners may lie to you or, even with the best intentions, give you incorrect information they have received from an unreliable source. They may also pass sensitive information on to the police in exchange for a reduction in their sentence. As a general rule, do not share information about your case with fellow prisoners or rely on any legal advice they give you.
2. What information should I share with the police?
Be very careful about any information you share with police officers. In many countries, everything you say may be used against you during criminal proceedings arising out of your arrest, so think before you speak.
Wherever possible, make sure you understand the reason for your arrest before you say anything to the police.
Please be aware that in some countries the police are not allowed to answer your questions. They may also be permitted to say things which have not been confirmed or may not be entirely correct in order to coax you into revealing incriminating information. Always confirm what arresting officers tell you with your lawyer.
If you have a right to remain silent and your silence cannot be used against you in court, you should wait until you have seen or spoken to a lawyer before saying anything to the police.
3. I have been asked to sign documents in a language I do not understand – should I sign?
Never sign blank pages.
Never sign a document written in a language you do not fully understand.
Ask for a translation of all documents you are requested to sign. Ideally you should get a written translation and you should only sign the translated document.
However, many countries do not grant foreign detainees a right to receive documents in a language that they understand. If you are in a country which does not provide translated copies of all legal papers and you have no alternative but to sign a document in a foreign language then you should:
- Ensure there is a professional and independent interpreter you trust who can translate a document verbally before you sign it;
- Make sure you write next to the signature that you did not understand the content of the document; and
- If you are unhappy with the translation of your alleged evidence, then make sure any signature makes clear that you feel this is not an accurate transcript of the interview or your comments.
Be aware that arresting officers may intimidate and misinform suspects in order to make them sign documents in a foreign language which may even be a confession.
4. How will I know what I am accused of?
In many countries the police will inform you of the allegations against you when you are arrested. If you are unsure of the reason for your arrest you should:
- Ask the police what the allegations are against you and ask for them to be given to you in writing, in a language you understand. Keep in mind that not all countries provide you with a written notice of charges. In some countries you will only be informed of the allegations against you after a certain period of time; and
- If the police have not decided to formally charge you, make sure you ask how long the police are allowed to hold you while they decide whether to continue the case.
5. What information should I seek from arresting officers if I have not seen a lawyer?
You may wish to ask:
- When you can see a lawyer and whether the state will provide one;
- When you are first scheduled to go to court;
- Whether you will be held by the police before you go to court; and
- How long you can legally be held by the police before:
- They formally tell you what the allegations are against you; and
- Your trial begins.
If the officers intend to hold you in custody, you may wish to ask:
- When you can apply for bail;
- How regularly you will appear in court for a judge to review the police decision to keep you in custody;
- Whether the investigation against you is complete and, if not, when it will be completed; and
- Your rights (See question 1 for further guidance).
Make sure you pass this information on accurately to your lawyer, your family and anyone else who is assisting you. Please be aware that in some countries the police officers are not allowed to answer your questions. It is also possible that they may say something which is not entirely accurate. Always confirm what arresting officers tell you with your lawyer.
6. I have been arrested abroad, and a representative from my consulate is coming to visit me. What should I do?
Ask your prison officer or your consulate to arrange a private visit with your consular representative so that no member of the police is present. This may not always be possible but it is worth asking.
If your first meeting is not held in private and you want to discuss matters of a sensitive nature, ask your consular official to arrange a private visit in the future or ask your family to request a private visit for you. In some countries a private visit may not be permitted.
Make sure you inform the visiting consular officer of any mistreatment.
If you have been mistreated, ask your consular officer to arrange for you to visit a doctor in private to document your injuries. If this is not possible, make sure you show your injuries to the consular official.
Give your consular official the name and contact details of your family members and your lawyer and ask the official how often they will visit and what other assistance they can provide to you. For data protection reasons the official may need a specifically named family member/friend to whom they can pass information about you. Ensure that you make it clear to the official that you would like them to exchange information about you with your nominated family member, even if the official does not ask.
Inform the consular officials of any other welfare issues and in particular inform them of any medical conditions or medicines you need.
Ask your consular official to provide you with information about all the organisations that can help you. You should also ask them to contact an organisation which can provide welfare support to prisoners detained abroad (for example if you are a British national you should ask your consular official to contact Prisoners Abroad).
7. What should I do if I have been tortured or mistreated by the police?
Keep as much evidence of your torture or mistreatment as possible (for example photographs, medical records etc).
Ask to see a prison doctor and show him/her any injuries resulting from the mistreatment and ask him/her to make a record of them.
Tell your family and your lawyer when you speak to them and ask them to keep a record.
If you have been arrested abroad, tell your consular official, and show him/her any evidence you possess of mistreatment. Ask him/her to keep a record of this information.
8. I have health issues or need medical assistance. What should I do?
Inform the prison officials and ask to visit a doctor or a hospital.
Ask your consular representative to help you arrange a visit to a doctor or a hospital. Write a letter to your consulate if no one comes to visit you.
Tell your lawyer and ask him/her to arrange a medical visit.
If you are a foreign national, ask your family to inform your consulate and give them details of the medical assistance you need.
9. What should I do next?
It is vital that you start preparing your defence as soon as possible after arrest. Do not rely on the police to correct misunderstandings themselves or to conduct a thorough investigation. You should use everything at your disposal to prepare your defence as soon as possible.
Take measures to preserve any evidence which may be lost. If you are in custody, ask your lawyer or your family members to do this.
- Discuss next steps with your lawyer; and
- Please refer to questions 18-23 for further guidance.
Consider what other kinds of support you might need, such as: assistance from an organisation involved in criminal justice or prisoner welfare, or help from your political representative (Please refer to questions 25-34 for further guidance).
How to Instruct a Lawyer and Prepare a Defence
10. Do I need a lawyer?
It is crucial that you obtain advice from a local lawyer if you are facing charges or are arrested abroad. Only a local lawyer will have the expertise to explain and advise on the legal system and to prepare your defence.
11. How do I find and instruct a lawyer?
In some countries, a state-appointed lawyer will automatically be assigned to you. If this is not the case you should ideally only instruct a lawyer if s/he has been recommended by a trustworthy source. Be wary of privately-funded lawyers who come to find you after your arrest.
If you do not know a lawyer in the country where you have been charged, you can obtain information from:
- Your native country’s embassy or consulate in the country where you have been charged;
- The local law society or bar association (ask for a specialist in criminal law, if possible); or
- Non-governmental organisations.
Once you have found a lawyer you must contact him/her and ask what s/he needs in order to formally accept your case (this may require you to sign a ‘Power of Attorney’).
12. What really matters when instructing a lawyer?
- Is this lawyer competent for the job you need him/her to do? How long has s/he been qualified? Is s/he experienced in your type of case?
- Does s/he have a good reputation? Is the lawyer truly independent of all other parties involved?
- Is the lawyer a member of the local bar association and registered?
- Consider the language in which you will communicate. Does the lawyer speak your language? If not, will an interpreter be present when you meet?
13. I’m not happy with my lawyer: What should I do?
Many people feel that their lawyer is not good enough for the job. Remember that working practices will vary between cultures and your lawyer may be good even if they do not act in the same way as a lawyer from your home country.
Before appointing a new lawyer, you should try to solve the problem by letting him/her know exactly what you are unhappy about and looking for ways to improve his/her services.
If that does not work, you should consider appointing a new lawyer. Be aware that a new lawyer will usually not take on your case until you have paid your fees to your former lawyer. Your former lawyer needs to be informed that you have changed lawyer so that s/he can forward your file to your new lawyer.
It may not be possible to change a court appointed or state-funded lawyer. If this is the case and you are not happy with your lawyer, you should consider whether you can afford to appoint a privately-funded lawyer.
14. Why do I need a local lawyer if I have a lawyer in my home country?
You need a lawyer who knows the law of the country of arrest as the applicable law is the law of that country and not the law of your home country.
You need a lawyer who is authorised to represent you in the country of your arrest.
Similarly, your lawyer needs to be familiar with the way proceedings are conducted in the country of arrest as you will face trial in the country of arrest rather than in your home country.
If you face extradition to a different country, whether for prosecution or to serve a prison sentence, you will normally need two lawyers: one in the country seeking your extradition and one in the country of arrest.
15. Can one lawyer represent me and other people arrested with me?
It is important that your lawyer’s focus is on your best interests. This may not be possible if s/he represents you and someone who has different interests.
A conflict of interests can arise when you are arrested with someone else in relation to the same offence (if their story is different from yours, or if they want to claim you are solely responsible for the offence). It is possible that your co-defendant or other parties may try to use information that you provide to their advantage, or otherwise adversely affect your defence.
To guard against these risks, it is in your interests to have a separate lawyer representing you.
16. How will my lawyer be paid?
You will generally be responsible for paying for your lawyer, although you may be able to ask friends and family for financial support. In some cases legal aid may be available to pay for your lawyer, but it is usually very limited (please refer to question 17 for further guidance). You may also be unable to instruct a lawyer of your choice if s/he is funded by the state.
Legal fees should be discussed and agreed during your first contact with your lawyer. The lawyer should be able to tell you at this stage how much you are likely to have to pay and how costs will be calculated. S/he will have to take into consideration the time s/he spends working on your case, usually charged by the hour, and any additional legal costs such as court fees. You should ask your lawyer to explain any likely additional costs.
Your lawyer may agree to a fixed spending limit, or you could arrange to pay your legal fees on a monthly basis. In any event, it is advisable to reach an agreement to pay the fees in instalments rather than paying them all upfront.
You/your family should ask for written invoices for fees, and not feel threatened into sending money after just a phone call.
17. What if I cannot afford to pay legal fees? What is legal aid and when is it available?
Not every country provides free legal aid. You need to ask your lawyer or your consulate for details on whether it exists and how to apply. When it exists, you may have to prove that you have a low enough income to be eligible. You should discuss your eligibility for legal aid with your lawyer.
Make sure you clearly understand how often you have a right to meet your lawyer and how much communication s/he is allowed to have with you at the state’s expense. You should discuss this with your lawyer when you meet.
You may not be able to instruct a lawyer of your own choice if you are receiving legal aid and sometimes you may only meet him/her when you are due in court.
Legal aid may not cover the additional services of an interpreter, which may limit the communication possible with your lawyer.
Be aware that the quality of the work done by legal aid lawyers varies greatly from one lawyer to another and from country to country.
18. How do I get the best from my lawyer?
The more organised you are in preparing for your meeting with your lawyer, the more productive the meeting will be. Remember that in some countries lawyers cannot visit their clients regularly, so get as much as you can from any meeting you do have.
Prepare your questions in advance, and in writing (please refer to questions 21-24 for further guidance).
Prepare a written statement setting out the background of your case.
Take notes – it can be very difficult to remember lots of information and you do not want to forget important advice.
Ensure any written documentation will not be confiscated by the police before writing anything on paper. It may be useful to mark all written documentation as ‘Privileged Post’ (though this is not guaranteed to prevent police in some countries from confiscating or reading your notes or communications).
19. It is difficult to understand my lawyer: What should I do?
Ask your lawyer to speak slowly and to use non-legal terms.
If you do not fully understand something, tell your lawyer that you don’t understand it and ask for an explanation.
If the lawyer does not speak your language, ask to use an interpreter.
20. Where should I keep documents relating to my case?
It is important to keep records of everything that happens in your case. Keep all the paperwork you are given and, if possible, keep a detailed diary of events.
It may be a good idea to leave original documents (such as court decisions) with your lawyer and ask him/her to give you copies of them, as originals are not always safe in prison.
Mark all communication with your lawyer or legal advisors as ‘Privileged Post’ and ‘Confidential Legal Mail’ (ask your lawyer what wording you should use and whether you should write this in the local language).
21. What should I agree with my lawyer when we first meet?
Ask the lawyer to confirm your instructions either orally or in a letter setting out the details of your agreement. This should cover the following issues:
Lawyer’s fees: as stated above, it is important that you come to an agreement on fees. Other legal costs should also be discussed (court fees etc). Keep a written record of this.
The extent of the legal representation: you should make clear whether the lawyer will represent you in all legal proceedings, up to and including trial. Also ask about appeals and other post-trial proceedings (such as prison transfers, pardon application, bail applications etc.).
Who will do the work: Ask your lawyer to make clear who will do the work (will s/he do it, another qualified lawyer, a paralegal?) If your lawyer is unavailable to attend a particular hearing, will s/he send a colleague to do so?
How will you work together: Decide which decisions the lawyer can make alone and which require your approval. Decide how regularly the lawyer will communicate with you about your case. Your lawyer should keep you regularly updated on the developments. You must also keep him/her updated on any significant developments in the case from your side. If you cannot communicate directly, agree on a family member or friend who will act as contact point. Bear in mind however that any time your lawyer spends dealing with you (communicating with you, reading correspondence, speaking on the phone) may be added to your legal fees, so try to be clear and organised in what you say, and avoid unnecessary repetition.
How will s/he accept instructions: Ask your lawyer if s/he requires you to sign a Power of Attorney. You should also clarify with your lawyer what s/he can do without your authority and what you do not want him/her to do without your prior authorisation.
Sharing of Information: Ask your lawyer if s/he will require you to sign an authorisation form before s/he can share information with others.
Confidentiality: Information you share with your lawyer should be confidential. However, before you share sensitive information confirm this with your lawyer. Ask him/her whether s/he can ever be obliged to reveal all the information you give him/her to the prosecution, the court or anyone else.
22. What should I ask my lawyer?
There are a lot of questions that only a locally-qualified lawyer can answer. Below are some suggested questions, but please note that this list is not exhaustive. There may be questions below which are not relevant to your case and you may well have a lot more to ask.
- What right do you have to legal representation, legal aid, family visits/contact with family by letter or telephone?
- What right does your consulate have to visit you?
- If you don’t speak the language of the court, will you have an interpreter? Will you receive a translation of the court summons/court decision/other documents in the case?
- Can they explain the prison system? What about prison transfers?
22.2 Information about the case against you:
- Ask whether the investigation against you is complete and, if not, when it will be completed?
- What is the likely timetable for the trial? When is the next hearing; what is going to be discussed or decided? When will your case come to trial?
- When and how will you be given the details of the case against you?
- How serious is the case against you and how likely is a guilty verdict?
- What is the maximum sentence that the judge can hand down? What is the likely sentence?
Pre-trial detention or conditional release on bail:
- How long can you legally be held in custody by the police before:
- They formally tell you what the allegations against you are (normally referred to as the ‘charges’); and
- If the officers intend to keep you in custody, when can you apply for bail, and what would help you to be granted bail (e.g. a place you can stay nearby, a clean previous criminal record)?
- Tell your lawyer if there is a place where you could stay on your own, with family or friends in the country of arrest, as this may help you avoid pre-trial detention.
- How regularly will you appear in court for the judge to review the police decision to keep you in custody?
23. How can I help my lawyer to prepare my defence?
23.1 Contacting witnesses and preserving evidence:
You need to understand who will be doing what and how you can help your lawyer to prepare your defence. Ask him/her:
- Who is responsible for putting your case together, contacting witnesses and preserving evidence?
- Will you and your lawyer get access to the court file, be allowed to take copies of documents, or otherwise see the evidence against you?
- Will you be asked to testify or produce other evidence for trial?
- What is the deadline for submitting evidence to the court for your defence, or providing names and addresses of witnesses, or their witness statements, or expert reports? Can that deadline for producing evidence be extended?
Give your lawyer all the information you think will help with your defence and ask him/her what other information will make your case stronger. You should ensure your lawyer is aware of any evidence that may need to be preserved before it is lost (for example CCTV evidence, flight records or hotel records).
You should also tell your lawyer if there are any witnesses who can support your defence as soon as possible so that if they are non-resident, s/he can contact them before they leave the country.
23.2 Deciding your plea:
You should discuss whether you should plead guilty or not guilty with your lawyer at your first meeting. You must first discuss with your lawyer whether you have a defence in law to counter the charges against you. If you have a good defence, your lawyer will probably advise you to plead not guilty.
Sometimes what you consider to be a defence (for example, a lack of knowledge of the law or a particular fact) is not a legal defence against the charges in the country of your arrest; your lawyer may then advise you to plead guilty.
Make sure to find out if any benefit is offered for taking responsibility (pleading guilty) at an early stage, or for providing evidence to the prosecution for use in other cases.
23.3 Reducing your sentence:
Ask your lawyer whether there is any information that you can provide to the court which will assist in reducing your sentence (this may include information about any medical conditions that you suffer from; your age, your family circumstances; your prior criminal record – or lack thereof – or information about the circumstances in which you committed the offence).
Ask your lawyer what documents you should provide to the court for the purposes of sentencing (in particular ask whether the documents need to be legalised and translated). You will need your family to assist you with preparing these documents.
24. What evidence can I present to the court?
Documents that are admissible as evidence will vary from one country to another, so you need to ask your local lawyer for this information.
Make sure every document you want to present to the court is presented in a legally admissible form. This will also vary from one country to another so you need to discuss it with your lawyer (in many countries you will need to translate the document into the official language of the country and legalise it).
Getting Support for your Case
25. What kind of support can I get?
The kind of support you seek will depend on your circumstances and what specific problems you are facing. You or your family may be able to get support from:
- If you have been arrested outside your own country, your national consulate or embassy in the country of arrest;
- Political representatives such as members of your Parliament on a local and national level;
- Non-governmental organisations and charities;
- Friends, family and local community; and/or
- Media coverage to raise the profile of your case (this is a risky area, so great care is needed – please refer to questions 33 and 34 for further guidance).
26. I have been arrested outside my own country. How can my consulate or embassy help?
The help will depend on your country of nationality and, sometimes, the country you are arrested in, but consulates can usually offer the following:
- Visits in prison, including one visit to you shortly after arrest, if you are in pre-trial detention. Discuss this with a representative from your embassy as the regularity of consular visits to prisons varies depending on your nationality, the country you are in and your personal circumstances;
- A list of local lawyers who specialise in criminal defence (and sometimes, what languages they speak);
- A list of legal interpreters or translators;
- Help contacting your family; and
- (In some cases) attendance at your legal hearings or trial.
You may find that the assistance your consulate can provide to be limited. As a general rule, they cannot interfere with local legal proceedings, and they are not able to give any legal advice.
27. How can political representatives help?
- They may be able to give you non-legal advice about your case and who else might support you;
- Speak to a government minister, diplomatic official or a foreign counterpart about your case;
- Write letters on your behalf to government officials, foreign government departments or judges;
- Raise the issues involved in your case for political debate, through parliamentary questions or in parliamentary committees;
- Help to highlight the issues involved in the local or national media; and
- If your case involves an EU member state or raises a European legal issue, your representative at the European Parliament (or MEP) might be able to help. MEPs can offer similar help to national politicians, but at the European level. They can approach the MEP for the country of arrest, or raise issues with the European Commission about EU law.
28. Who is my political representative and how do I contact them?
UK residents or nationals can find out who their MP is by calling the House of Commons Information Office on +44 (0)20 7219 4272 or you can visit www.theyworkforyou.com . You may ask a family member to do this for you if you do not have internet access. You can contact your MP’s Westminster office through the Parliament switchboard on +44 (0)20 7219 3000 and you can also write to your MP at: House of Commons, London SW1A 0AA.
Information about local and national political representation is available on the internet in most countries, along with contact details. For example, if you are a citizen of an EU member state, you can find out about your representative in the European Parliament at www.europarl.org. This information is also held in many local libraries and your family can acquire it for you.
Politicians often have their own websites, giving contact information and details of how to arrange meetings with them.
29. How can I get help from my political representative?
You (or a trusted friend or relative) should begin by writing to the political representative. Enclose a clear written outline of all the important information about your case. Keep it brief, factual and accurate. Say what kind of help you want, and what you are aiming to achieve.
After sending this letter, a friend or family member at home should try to arrange a meeting. (In the UK, MPs hold regular meetings called ‘surgeries’ in their constituencies. These are an opportunity for local people to meet individually with them and appointments can be made to attend these. Before the meeting, make sure all the court documents and other official papers are organised in date order and bring them to the meeting with a clear written summary.)
30. What other organisations might help?
Which organisations can assist you and how will depend on the issues you are facing and where the case is based. The following charities may be able to assist:
Prisoners Abroad provides welfare support for British Citizens in prison overseas.
Email: [email protected], Tel: 0808 172 0098 (UK), +44 20 75 61 68 20 (abroad)
Reprieve represents prisoners facing the death penalty or in illegal detention around the world.
Email: [email protected], Tel: +44 (0)20 7553 8140
REDRESS provides support for torture victims.
Email: [email protected], Tel: +44 (0)20 7793 1777
Amnesty International campaigns to help political prisoners.
Email: [email protected], Tel: +44 (0) 20 7413 5500
AIRE Centre provides information and advice throughout Europe on human rights law.
Email: [email protected], Tel: +44 (0) 20 7831 3850
The Innocence Project provides legal assistance to overturn alleged cases of wrongful conviction (dependant on meeting their eligibility criteria).
UK Project – Website: www.innocencenetwork.org.uk, Address: Innocence Network UK (INUK), School of Law, University of Bristol, Wills Memorial Building, Queens Road, Bristol BS8 1RJ
These charities might also be able to refer you to a more appropriate organisation if they cannot help you directly. Your lawyer or consulate might know about similar organisations in the country of your arrest; ask them.
31. What kind of help can my local community give?
If money is needed to fight your case, you could organise fund-raising events, but only do this if you are happy with the public knowing about your situation. Events might include sponsored challenges, auctions of tickets or other items, holding quizzes or concerts or having stands at community events where you can hand out leaflets seeking donations.
Some people choose to publish information themselves, for example through their own dedicated websites or in blogs about their case. A trusted friend or relative, or people from your local community, might be able to help with this.
There may be other people or groups facing similar issues to you, or who have been through the same experiences and have helpful information to share. They may have websites or blogs where you can contact them. They may be willing to work with you in organising events or publicity. The best way to find out is by searching the internet, or by speaking to people in your community or to charitable organisations who work in similar cases.
32. Should I seek media coverage for my case?
Media coverage can be a dangerous way of seeking support for your case. It can damage your defence – and your reputation – in ways that are hard to predict or control. Before taking this step, speak to your lawyer and any charity that is helping you.
It is important to understand the risks of media coverage. We have included some examples below:
- The local law might treat speaking to journalists as a ‘contempt of court’, which can attract fines or even prison sentences;
- You could damage your defence by angering local prosecutors or judges by ‘going public’ with your complaints. You may also inadvertently weaken your own case by publicising details about your defence, as the investigating authorities could take advantage by re-tailoring the prosecution case against you;
- Media coverage could put pressure on your family and friends;
- Journalists are interested in getting a good story. That might coincide with wanting to expose injustice or ill-treatment, but not necessarily. Your interests might be secondary to theirs;
- Once you have given information to a journalist, s/he can investigate and report on the case without your input and publish information without your consent or involvement. Once this process has started, it can be hard to control; and
- You may get sympathetic coverage in your country of origin. However, media coverage in your country of arrest may not be sympathetic. This may impact the way you are treated in custody.
33. The press are asking questions. What should I do?
The safest thing to do is to say ‘no comment’. This may seem rude or strange if a journalist seems sympathetic; however it is important to remember that journalists are simply after a story and you have no obligation toward them, nor they toward you.
Ask your lawyer’s opinion before you speak to any journalist. If a charity is supporting you, ask them. Discuss whether s/he believes that media coverage will be helpful or harmful to your case, and how s/he intends to respond to any media queries that arise. If you prefer that your lawyer does not make any comments to the media, make that clear to him/her.
Do not be pushed into making any comments before seeking your lawyer’s advice; until you have his/her consent you should say ‘no comment’.
Make sure your family and friends also respond to the media with ‘no comment’.
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In a Saudi city in mid-2006 a young man, Yasir, received a phone call from a friend asking for help. His friend was with his girlfriend, whose parents were searching for her after her school had reported her absent. At his friend's behest Yasir offered to drive the girl home, but the girl was frightened about the consequences of her actions-which would be deemed a moral lapse-and wanted to go to the desert so she could commit suicide. Yasir told Human Rights Watch that he spent all day calming his friend's girlfriend and convincing her that her parents would be understanding.
Meanwhile, the criminal investigation police had arrested his friend. Shortly after Yasir had dropped off his friend's girlfriend at home, the police arrested him too. Yasir told Human Rights Watch,
The director [of the police station] met me and his behavior was very bad. He didn't let me speak. Two other officers said [I] did this and that, and they recorded it. I denied everything, even knowing the girl. Then they beat me with a very big stick, and I confessed. I spent 10 days there, all in solitary confinement and with daily beatings. They did not interrogate the girl. They only brought her at some point to identify us. She came with her father and watched from behind the glass.
He described the court proceedings:
In court, the judge asked me and I told him what happened. It was one session that lasted 20 minutes. Only the judge and I were there. There was no prosecutor and no clerk. I could not ask the girl to verify that I was engaging in a humanitarian task and that if anyone was guilty, it was she and my friend. I could not even ask to bring my friend to speak. The judge sentenced me to six months in prison and flogging of 90 lashes. I was never imprisoned and fell under King Abdullah's amnesty later that year, [but] fifty of the lashes were carried out. Before the trial my family settled [a private claim by] the girl's family for a large sum of money.
New laws [will] ensure justice and protect public rights.
-Crown Prince Sultan bin Abd al-'Aziz, October 18, 2007
Saudi government officials have made a number of declarations in recent years, asserting that the Saudi criminal justice system adheres to high standards, and have recently implemented a number of legal reforms. The practice of Saudi justice, however, does not measure up to these declarations, and the reforms have not appreciably strengthened the safeguards against arbitrary detention or ill-treatment, or enhanced the ability of defendants to obtain fair trials.
Human Rights Watch conducted research missions to Saudi Arabia in November and December 2006, and again in May 2007. We found pervasive injustices in the Saudi criminal justice system and systematic and multiple violations of defendants' rights. Individuals in Saudi Arabia may find themselves detained and arrested for behavior that is not inherently criminal, or for apparently (and unwittingly) offending vague legal prohibitions. They may then find themselves in solitary confinement and subject to forms of ill-treatment. The authorities often do not inform individuals of the crime of which they are accused, or the evidence supporting the accusation. An accused person typically does not have access to a lawyer, faces abuse when refusing to incriminate him or herself, and waits excessive periods of time before trial, where he or she is often unable to examine witnesses or evidence and present a legal defense, not least because of a presumption of guilt and shifting charges.
The violations of defendants' rights are so fundamental and systemic that it is hard to reconcile Saudi Arabia's criminal justice system, such as it is, with a system based on the basic principles of the rule of law and international human rights standards. The violations derive from deficiencies both in Saudi Arabia's law and practices. Saudi Arabia has not promulgated a penal (criminal) code. Accordingly, citizens, residents, and visitors have no means of knowing with any precision what acts constitute a criminal offense. Previous court rulings do not bind Saudi judges, and there is little evidence to suggest that judges seek to apply consistency in sentencing for similar crimes. Saudi criminal justice imposes the death penalty after patently unfair trials in violation of international law, and imposes corporal punishment in the form of public flogging, which is inherently cruel and degrading. Saudi law and practice are also inherently discriminatory. One Saudi interpretation of Sharia law provides that a Muslim woman's testimony is not generally accepted in criminal cases and non-Muslim men may testify only in cases of "necessity." Women cannot represent themselves in court under the Saudi practice of male guardianship over "minors," a term that includes women of all ages.
In 2002 Saudi Arabia promulgated the country's first criminal procedure code. While this was a welcome step, the Law of Criminal Procedure (LCP) does not incorporate all international standards pertaining to the basic rights of defendants. For example, the LCP does not permit a detainee to challenge the lawfulness of his or her detention before a court, it fails to guarantee access to legal counsel in a timely manner, and contains no provision for free legal assistance to the indigent. The LCP grants the prosecutor the right to issue arrest warrants and prolong pretrial detention up to six months without any judicial review. While the LCP prohibits torture and undignified treatment, it does not make statements obtained under duress inadmissible in court. It does not set out the principle of presumption of innocence, or protect a defendant's right not to incriminate him or herself. Furthermore, it does not sanction officials who coerce defendants, and empowers prosecutors to detain suspects without having to meet a defined standard of evidence of a suspect's probable guilt. Judges routinely ignore, and are even ignorant of, the provisions of the Law of Criminal Procedure.
Many of the most systematic abuses occur at the hands of the Ministry of Interior's domestic intelligence service (mabahith), which runs its own detention facilities. These range from holding cells of local intelligence offices to sprawling prison complexes such as al-Ha'ir mabahith prison near Riyadh, which is close to al-Ha'ir Correctional Facility for ordinary criminal defendants. In at least one region, Najran, court documents show that the intelligence service used its own prosecutors.
Outside agencies do not scrutinize the policies and practices of the mabahith. None of the seven former detainees and 25 family members of current mabahith detainees Human Rights Watch spoke with said he had ever seen an official from the Bureau of Investigation and Public Prosecutions visit mabahith prisons, although the law tasks the bureau with inspecting all prisons and freeing inmates wrongfully detained. Saudi Arabia's four-year-old government-approved National Society for Human Rights (NSHR) did not carry out inspections of mabahith prisons, but the two-year-old governmental Human Rights Commission toured some facilities in 2007. The NSHR, in its first report (May 2007), said it hoped to visit in the near future. The Saudi government abruptly cancelled an agreed visit by Human Rights Watch to mabahith prisons in May 2007.
The mabahith has arrested human rights activists, religious activists, academics, and advocates of political reform, and held some for over 10 years without charge. It currently holds around 1,500-2,000 dissidents and security detainees in its detention facilities, following the release of 1,500 detainees in November 2007. Anecdotal evidence suggests that the number had increased in recent years before the recent large-scale release, as the mabahith detained scores of Saudis returning from Afghanistan after 2001 and those suspected of heading to Iraq since 2003, as well as others suspected of involvement in a domestic bombing campaign that began in March 2003. When Sa'd al-Faqih, a Saudi dissident living in London, called for demonstrations against the government in 2004, and thousands of Saudis took to the streets of Riyadh and Jeddah in response, the mabahith arrested hundreds of the protesters, some of whom still remain in detention.
Detainees held by the mabahith have no effective access to legal counsel or the courts, and the mabahith carries out arrests without judicial oversight and without a legal basis. In the rare cases in which mabahith detainees have actually received a trial, it is in secret, as is the passing of the sentence, and families and former prisoners reported that the mabahith keeps prisoners in detention well beyond the expiry of their sentence. For most detainees languishing in mabahith jails for years, the day they are to be tried in a court of law has not yet arrived.
Instead of charging many security detainees with crimes and bringing them to trial, Saudi Arabia claims that it tries to reeducate them. Over 700 mabahith detainees have been released following their "successful" reeducation since the start of the program in 2003, officials told Human Rights Watch in December 2006. The Ministry of Interior's Consultation Committee, composed of religious experts and psychologists, invites detainees suspected of harboring "deviant" thoughts-a term Saudi officials use for violent and non-violent dissidents alike-to participate in a program of reeducation. It is an invitation that detainees can hardly refuse, since successful completion of the program is a necessary, though not sufficient, condition for release. Substituting such a program of involuntary "reeducation" for an impartial adjudication of criminal charges in a court of law denies defendants the chance to prove their innocence and clear their names. A senior Saudi official told Human Rights Watch that the reeducation approach largely replaces trials.
Human rights violations also arise at the time of arrest and detention of detainees who are not national security suspects. While Saudi law provides some formal safeguards against arbitrary arrest, police officers frequently ignore them. In violation of Saudi law, officers carry out arrests without warrants, fail to inform suspects of the reasons for their arrest or of their rights to legal counsel, do not grant detainees the right to communicate with the outside world, and do not formally charge suspects with a crime. Human Rights Watch has only come across a handful of cases where a criminal defendant was able to have access to a lawyer before a case was referred to trial.
The Commission for the Promotion of Virtue and Prevention of Vice (CPVPV) is an authorized law enforcement agency in Saudi Arabia. In 2005 the CPVPV's 5,000 religious police officers, together with 5,000 volunteers, carried out 400,000 arrests. Since 2006 these agents, who do not wear uniform, must wear identifying badges and may only make arrests when accompanied by a regular policeman. A 1980 law empowers these religious police, who answer only to the king, to arrest, detain and interrogate persons for undefined criminal offenses. On July 1, 2007, Interior Minister Prince Nayef reaffirmed a 1981 royal decree prohibiting the religious police from detaining and interrogating suspects at their centers. A year earlier, the Saudi government declared that religious police must not detain or interrogate suspects or "violate the sanctity of private homes." However, the CPVPV does not observe the Law of Criminal Procedure when arresting, detaining, and interrogating suspects. The president of the CPVPV said that his agents can enter private homes if they learn of a serious crime in progress. In 2007, reportedly for the first time, CPVPV members faced criminal charges of murder and abuse of power in three separate incidents, but the courts acquitted the officials.
Such arrest practices by the police and the CPVPV result in defendants waiting anxiously in prison without knowing what it is they are alleged to have done; what, if any, evidence the prosecutor has against them; when the prosecutor will interrogate them; or if he will take them to court. Several defendants told Human Rights Watch that they learned of their first court date only the night before or on the same morning. Detainees spent between a few days and several months in a police station before being moved to a general prison; in prisons there was no separation between convicted prisoners and detainees on remand or who were still awaiting a court hearing.
More than a dozen defendants arrested by the police said that at police stations, and in particular at the branches of the Ministry of Interior's Criminal Investigation Department, police officers, and sometimes prosecutors, beat them and threatened them in order to extract confessions. Once they confessed, officers usually drove them to court for a procedure called verification of statements in which defendants put a thumbprint on statements made during interrogation in order to authenticate them for use during trial.
Saudi criminal procedures, which permit judges to shift roles between adjudicator and prosecutor, indicate that in practice there is no presumption of innocence for defendants. Unless the crime is considered "major" under Saudi law, the trial judge dons the mantles of both judge and prosecutor. In all criminal cases, the judge can change the charges against the defendant at any time and, in the absence of a written penal code, it appears that judges in some cases set out to prove that the defendant has engaged in a certain act, which they then classify as a crime, rather than proving that the defendant has committed the elements of a specific crime as set out in law. In other cases, defendants recounted how a judge refused to proceed with a trial unless the defendant disavowed and withdrew a claim that his confession was extracted under torture, effectively holding the defendant hostage until he reaffirmed a confession obtained under duress.
With exceedingly short notice before court hearings, defendants have little time to prepare their defense, and lack access to their files, including the prosecutor's case against them and the specific charges under Saudi law. Detainees did not have access to Saudi statutory laws or current interpretations of Sharia. Unless they had had specialized Sharia training, they had no means of knowing the elements of the crime pertaining to the criminal behavior they were accused of, the procedures necessary to establish guilt under Sharia rules, and the penalty they could expect to receive if found guilty. Defendants also told Human Rights Watch about their inability to bring witnesses to testify on their behalf, even with a lawyer present, or to challenge the witnesses for the prosecution. No defendants interviewed by Human Rights Watch recalled ever seeing physical evidence produced in court, or having access to exhibits of evidence available to the judge and prosecutor. Although waiting times before trial and between hearings can be weeks, months, or even years, judges typically concluded entire trials in one or two court sessions lasting one or two hours. With few exceptions, defendants did not receive a copy of their verdict, making an appeal extremely difficult.
The defendants' inability to access, much less to challenge, allegedly incriminating evidence, a frequent presumption of guilt, and vague and shifting charges all combine to create insurmountable obstacles for defendants trying to prove their innocence. Saudi judges in several cases admitted that a defendant's guilt was not proved. Instead of finding the defendants not guilty of the charges they faced and releasing them, though, the judges convicted them but issued more lenient sentences than they otherwise would have.
Saudi Arabia has taken recent steps to assemble some building blocks of the rule of law, such as the Law of Criminal Procedure. In October 2007 the government amended two laws, the Law of the Judiciary and the Law of the Board of Grievances, which improve judicial independence. The laws also set up new specialized courts for personal status, commercial, labor, and traffic disputes. Furthermore, a new supreme court will be able to hear a variety of appeals. The king announced $1.8 billion in government funding to build and staff new courts and train old and new judges. However, progress toward this and other reforms has been slow and has had little effect on the rights of defendants in the criminal justice system. Saudi Arabia should tackle the fundamental shortcomings of its judicial system by reforming its laws and its criminal procedures, from arrest through imprisonment, to ensure that they comply with international human rights standards. At present, the shortcomings in Saudi Arabia's criminal justice system are so pervasive as to leave grave doubt that Saudi courts have established the guilt of sentenced prisoners in a fair trial and that law enforcement officers detain untried defendants on a sound legal basis.
Human Rights Watch recommends that Saudi Arabia initiate reforms in four areas of its criminal justice system to strengthen due process and fair trial rights in compliance with international human rights law and standards.
First, the Saudi cabinet should pass, amend, or rescind laws and decrees as necessary to bring Saudi Arabia into compliance with international human rights law, including by changing the Law of Criminal Procedure to allow detainees to challenge the lawfulness of their detention and by enacting a penal code that prohibits jailing persons solely for indebtedness. Second, the Ministry of Interior and the Bureau of Investigation and Public Prosecution should make changes in its practices when arresting and interrogating a person to ensure greater transparency and prevent ill-treatment of detainees. Third, the Ministry of Justice and the Supreme Judicial Council should strengthen the rights of defendants to ensure they can get a fair trial, including by providing defense lawyers free of charge to indigent defendants and allowing defendants to effectively challenge the evidence against them. Finally, the Saudi government should remove the prosecutorial offices from the control of the Ministry of Interior, and remove the power to arrest, detain, and release suspects from the prosecution.
In November and December 2006 Human Rights Watch conducted its first fact-finding mission to Saudi Arabia and spoke to over 90 current and former defendants in the criminal justice system, and to more than 25 lawyers, current and former judges, Ministry of Interior officials, prosecutors, and prison officials. Human Rights Watch collected testimony from persons in Hofuf, Khobar, Dammam, Qatif, Tarut, Ra's Tannura, Jubail, Hafr al-Batin, Sakaka, Ha'il, Medina, Jeddah, Ta'if, Mekka, Baha, Abha, Najran, Kharj, Riyadh, Buraida, 'Unaiza, and Bikiriya.
With the exception of three group interviews with detainees in al-Ha'ir Correctional Facility and one interview with intellectuals in Riyadh, we conducted all interviews privately and individually. During the group interviews with prisoners in al-Ha'ir Correctional Facility, we asked about their individual criminal cases, cases of abuse and cases of death in custody known to them, and their individual experiences during interrogation and trial. We cross-checked allegations across these groups and with former detainees' accounts for consistency.
Where we conducted telephone interviews with defendants in other non-mabahith correctional facilities, we conducted more than one telephone interview to verify the facts presented.
Prior to Human Rights Watch's visit to Saudi Arabia, human rights activists in Saudi Arabia, whom Human Rights Watch contacted of its own accord, as well as opponents of the Saudi regime living abroad, whom we did not contact, published contact information for the delegation members, urging Saudis to contact us. We received hundreds of calls with complaints about a wide array of matters. We met with some of these callers in person after having established that there was a genuine human rights concern related to the administration of justice, and we also conducted telephone interviews with a small number of callers, especially where other longstanding contacts of Human Rights Watch could back up their claims.
Nine persons in the Human Rights Watch delegation conducted interviews in English and Arabic in al-Ha'ir Correctional Facility. One researcher collected all other accounts by speaking to victims and their families, lawyers, and officials, in Arabic. We did not prepare interviewees for the type of questions we asked, and we put similar questions framed within international human rights standards for a fair trial (point of arrest, charge, access to legal counsel, interrogation and detention conditions, access to evidence, trial procedures).
In addition to investigating known cases, a large number of individuals in Saudi Arabia complain directly to Human Rights Watch. The cases presented here include some of those cases, where we were able to conduct detailed follow up about fair trial violations. Due to space constraints, the cases presented in this report represent only an illustrative selection of the number of cases investigated.
Human Rights Watch cannot determine the guilt or innocence of the persons we spoke to. Our concern was to probe the degree to which Saudi law enforcement officers, prosecutors, and judges respect fair trial protections guaranteed under international and Saudi law. The detainees, with rare exceptions, had little if any knowledge of the kingdom's laws or human rights law, or the legal means to defend themselves. In addition to detainees' testimonies and accounts from their families, Human Rights Watch consulted court verdicts and official correspondence where available. To protect the persons featured in this report, some of whom are in detention, we have substituted pseudonyms for their real names.
To our regret, the Minister of Justice and other officials declined to meet with Human Rights Watch representatives. Judges in two courts refused Human Rights Watch access to trials. Ministry of Interior officials did not fulfill their promise to allow Human Rights Watch to conduct a return visit to the al-Ha'ir Correctional Facility, or other prisons and detention facilities to which we requested access.
In February 2008, Human Rights Watch sent the full report in English and Arabic to the Saudi Human Rights Commission and from March 7-15 conducted discussions with Saudi officials, including officials from the Ministry of Justice and the Ministry of Interior about its findings. A summary of the discussions is included in the Appendix.
Part 1: Saudi Law
I. Sharia and Statutory Law
Article 1 of the kingdom's Basic Law of Governance (1992) elevates the Quran and the Prophet's traditions (Sunna) to the status of an immutable constitution: Saudi Arabia's "constitution is Almighty God's Book, The Holy Quran, and the Sunna (Traditions) of the Prophet (PBUH)."Saudi Arabia applies the Sharia (Islamic law) as the law of the land. Sharia relies on an interpretation of the Quran and verifiable traditions and sayings of the Prophet Muhammad (d.632) to derive, directly or indirectly, normative rules governing the behavior of Muslims and, in certain instances, of non-Muslims.
Sharia is not readily available and accessible to laypeople, nor is it a codified set of rules. To understand Sharia precepts, their origins and applications, jurists and legal scholars study the Quran and the Sunna and the works of previous great scholars, often for years. Sharia scholars adopt certain methodologies (usul al-fiqh), such as linguistics and verification of true Prophetic traditions, and then study jurisprudence (fiqh), usually following a particular legal school. Sunnis generally follow one of four legal schools, named after their founding scholars, Shafi'i, Hanafi, Maliki, or Hanbali. Most Shia follow the Ja'fari or Zaidi schools of legal thought, but there are others.
Saudi Arabia's founding ruler gave refuge and then subscribed to the reformist ideas of Muhammad Abd al-Wahhab, an 18th-century itinerant scholar and preacher. Under Abd al-Wahhab's influence, much of today's Saudi Arabia came under the sway of a strict literal interpretation of the Quran and the Sunna. Although Abd al-Wahhab based his interpretations on his own understanding of original texts, his methodological approach is close to that of the Hanbali School of Jurisprudence. Hanbalis shun using derivative sources of law or scholarly consensus (ijma') to adjudicate any given issue. Other schools of thought give ijma' the force of legally binding opinion, which Hanbalis sometimes regard as an improper innovation attributing legislative powers to judges. The HanbaliSchool also does not encourage the use of precedents. Instead, Hanbali jurists prefer to employ their own original legal reasoning (ijtihad) to the Quran and Sunna to derive the appropriate ruling for the case under consideration. Saudi judges and official arbiters of public morality generally follow the Hanbali school of thought, and are frequently called "Wahhabi," a term denoting their scholarly indebtedness to Abd al-Wahhab.
The division of respective areas of influence between the absolute rulers of the House of Sa'ud and the Wahhabi religious establishment has endured through subsequent centuries and periods of temporary demise of the Saudi state. The religious establishment in Saudi Arabia has broad influence over everyday life. Its scholars and officials write and vet textbooks used in schools. Officials in the Commission to Promote Virtue and Prevent Vice (CPVPV) lecture at social gatherings, teach the Quran in prisons and social institutions, and keep a watchful eye over the moral behavior of the general public. Religious officials preach in local mosques where prayer attendance is mandatory. The judiciary, too, is almost the exclusive province of the religious establishment.
Although by no means a monolithic bloc, conservative views dominate the religious establishment, advocating against greater personal freedoms, such as in women's choice of dress, and against modernizing steps, such as codifying Sharia or facilitating women's access to the workplace. In March 2006 Muhsin al-'Awaji, a prominent voice among conservatives, published on his website a scathing critique of the liberalizing efforts of Minister of Labor Ghazi al-Qusaibi. In the same month, conservatives, some associated with the CPVPV, disrupted the Riyadh International Book Fair and harassed authors, particularly female authors. In November 2006 mostly young conservatives stormed the production of a theater play by a group at al-YamamaCollege. In March 2007 a number of religious men signed a petition against the invitation of women to the literary club of al-Ta'if.
The Saudi government does not publish an official interpretation of Sharia. In the area of criminal law, the government has not published an interpretative text carrying the force of law of the precise definitions of acts that constitute offenses, such as "disobeying the ruler." Unlike Qatar, which also follows the Hanbali School, Saudi Arabia has no written penal code.
The task of interpreting and applying Sharia largely falls to the judiciary, composed of courts and judges, a Supreme Judicial Council, a Council of Senior Scholars, a mufti, and a Ministry of Justice. Article 48 of the Basic Law specifies, "The Courts shall apply rules of the Islamic Sharia in cases that are brought before them, according to the Holy Quran and the Sunna." Sharia, however, is silent on many areas in which modern life requires the application of precise legal norms. To fill this void, Saudi Arabia's prime minister (a post held currently by the king), may issue positive, or statutory, laws-called regulations to differentiate them from God-given laws of Sharia-as long as they do not conflict with Sharia precepts. Article 48 of the Basic Law, itself one such statutory law, also obliges the courts to apply Sharia rules "according to laws which are decreed by the ruler in agreement with the Holy Quran and the Sunna." Saudi Arabia has published hundreds of such statutory laws to regulate areas where Sharia precedents or interpretations have little bearing, such as traffic and banking laws.
II. Legislative Developments and the Law of Criminal Procedure
Since the rule of King Abd al-'Aziz Al Sa'ud (1902-1953), the Saudi government has been issuing regulations governing public life. Important regulations included the Public Security Law (1950), the Labor Law (1969, updated 2005), the Law of the Judiciary (1975, updated October 2007), and the Law of the Commission to Promote Virtue and Prevent Vice (1980, currently being updated).
Saudi Arabia took a further step toward establishing a more professional justice system by creating the Bureau for Investigation and Public Prosecutions by statutory law in 1989.
As new regulations (statutory laws) multiplied, Saudi critics argued that these laws were not rooted in any document, such as a constitution, which enumerated the rights and duties of citizens. In 1992 King Fahd issued three such documents, a trilogy of administrative laws. The Basic Law, Saudi Arabia's proto-constitution, declared the country to be an Islamic monarchy with certain enumerated powers for Saudi Arabia's two branches of government, the executive-cum-legislative, and the judiciary. At the same time, the king also decreed a Law of the Provinces that set forth the division of powers between the provinces and the central government and tasked provincial governors with protecting the rights of citizens and developing their respective regions. Currently, all 13 provincial governors, who are answerable to the minister of interior (Article 8), are royal princes. The third in this trilogy of basic administrative laws was the Law on the Advisory (Shura) Council. The king appoints its members (originally 60, now 150), who could "study" and "interpret," but not initiate, legislation (Article 15).
These laws did not adequately protect important human rights, especially in the criminal justice system. The rights and responsibilities of defendants, claimants, and prosecutors remained vaguely defined. While government officials and lawyers said that Sharia interpretations espouse concepts such as "no punishment without a crime" and "innocent until proved guilty," these are not codified into law, and Sharia itself provides little specific guidance on such issues as limits on pretrial detention, the right to legal counsel, or the right to be tried in person. The Basic Law also did not specify basic rights of due process and fair trial that defendants in the criminal justice system might invoke upon arrest and in court.
A new set of laws helped fill in some of the gaps left by the Basic Law. In 2000 the government issued a 266-article Civil Procedure Code. The following year King Fahd agreed to the text of Saudi Arabia's first Law of Criminal Procedure, which entered into force in 2002. This law contains 225 articles laying out the process for the initiation of criminal action; rules of collecting and preserving evidence; conditions of arrest and pretrial detention, including bail; and the jurisdiction of courts and their proceedings. The government at the same time issued the Code of Law Practice regulation, stipulating procedures for the licensing and appointment of lawyers, and their rights and duties. These new laws gave Saudi citizens and residents a clearer definition of their rights in detention and at trial and laid out the procedures the investigators and courts must follow. For the first time, defendants had the right to legal counsel during investigation as well as at trial (Law of Criminal Procedure, Article 4).
Shaikh Muhammad Al Abdullah, the kingdom's chief prosecutor, told Human Rights Watch that "all of our work follows the criminal procedure code in all cases." Most of those interviewed told Human Rights Watch that the Saudi government implemented the criminal laws unevenly, and sometimes not at all. Defendants described numerous and specific instances in which prosecutors, arresting officers, and judges did not act in conformity with the law's provisions. Jeddah-based lawyer Aiman told Human Rights Watch, "The criminal procedure code is still new for prison officials. A detainee has to insist on his rights and know them. Nobody will tell him his rights or facilitate his access to them." Hisham, a Dammam-based lawyer with trial experience, confirmed to Human Rights Watch that "Judges are not very conversant in the criminal procedure code."
Saudi law divides punishments for criminal acts into three broad categories: (1) offenses against God carrying inalterable punishments prescribed by the Quran (hadd); (2) private rights to retribution connected with a criminal act (qisas); and (3) discretionary punishments (ta'zir) for all other criminal offenses.
III. Codification of Criminal Laws
Hadd crimes include adultery, false accusation of adultery, apostasy, drinking alcohol, theft, rebellion, and armed robbery. Qisas is most commonly applied to murder and manslaughter and instances of physical or material harm or harm to the reputation of another person. Ta'zir punishments cover all other actions that a judge may deem to be criminal and that warrant public action, for example, the failure to observe prayer, lewd behavior, or defrauding others.
Saudi Arabia does not have a written penal code, but relies on judges' interpretations of the Sharia for determination of which actions constitute crimes and what the attendant punishment should be. The definitions of crimes and nature and severity of punishments may vary from case to case. In 2005, as Saudi Arabia was negotiating its accession to the World Trade Organization, Saudi officials revived an idea first touted by King Abd al-'Aziz in the 1930s, to provide citizens, law enforcement officials, and judges with a clear, written formulation of what constitutes a crime. According to Shaikh Abd-al-Muhsin al-'Ubaikan, the Justice Ministry's judicial adviser and member of the Saudi Shura Council, the country's "highest leadership" approved a plan to compile Islamic jurisprudence (fiqh) in the form of articles of law "to be used by the courts but without being compulsory."
Despite al-'Ubaikan's 2005 assertions concerning a plan to codify criminal jurisprudence, no such laws had been publicly discussed or enacted at this writing.
(Saudi Arabia has passed statutory laws for a limited number of offenses, such as embezzlement, official abuse of power, and drugs-related and explosives-related offenses. The Board of Grievances, under a law regulating its jurisdiction updated in October 2007, lost jurisdiction over embezzlement, abuse of power, and explosives cases, which newly created, but not yet established, criminal courts are due to adjudicate in the future. Sharia courts adjudicate weapons and drugs offenses. Until two years ago, the Ministry of Interior set sentences for these crimes after a courted issued a guilty verdict.)
The lack of a penal code remains a key deficiency in Saudi law and a primary obstacle to protecting Saudi citizens and residents from arbitrary arrest and detention, and unfair trials. When Human Rights Watch asked a member of the Shura Council's Islamic Affairs, Judiciary, and Human Rights Committee about the desirability of a penal code, he said that the opinions on disparate matters of jurisprudence by various scholars, often written hundreds of years ago, sufficed as guidance. Minister of Justice Abdullah Al al-Shaikh, in a March 10, 2007 wide-ranging interview on the new judicial law, said, "The royal palace has issued its preliminary approval … and which we hope will see the light [of day] soon," but did not touch upon aspects of codifying Sharia jurisprudence into a penal law.
International law stipulates that a government must clearly put those under its jurisdiction on notice as to what constitutes a crime. This principle is anchored in the Universal Declaration of Human Rights. Article 11 of the UDHR states, "No one shall be held guilty of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed." Article 15 of the International Covenant on Civil and Political Rights (ICCPR) repeats this provision almost verbatim. This principle of legality holds that, under international law, the state can only sanction or punish people for acts that are prohibited by law. The laws setting forth criminal acts must be accessible to the persons concerned and be formulated with sufficient precision to enable defendants to have been able to foresee, with legal advice if necessary, to a degree that is reasonable in the circumstances, the consequences that a given action might entail. Where the law does not specify a prohibited act in a manner that is accessible and reasonably foreseeable, a person cannot be lawfully charged with having committed an offense.
The principle of legality lies at the heart of the rule of law. It provides an important safeguard against arbitrary criminalization of acts not otherwise prohibited. Vague, over-broad, and inaccessible laws violate this principle and thus undermine the rule of law.
A Riyadh-based lawyer and former judge told Human Rights Watch of his frustration with the limits of the Law of Criminal Procedure in the absence of a penal code: "I don't take criminal cases because there is no law I can argue with." A Jeddah-based lawyer echoed this view: "Currently there's a discussion about a penal code," he said. "The reason is that the criminal procedure code exists, but a criminal procedure code without a penal code is like a plane with one wing. It can't fly."
The need for a codified penal code is central to respect for human rights, as without clear, explicit direction to the contrary, exercise of basic human rights in Saudi Arabia could currently bring an individual into conflict with the law. The Saudi Basic Law contains no positive protection of the rights to assembly and association, for example, leaving it up to a judge to decide when a certain act may have crossed an unwritten line of "obedience to the ruler" and "public interest." These concepts of obedience and public interest are part of an undefined area in which the ruler, through edicts, and the judge, by adjudicating individual acts, lay temporary and unpredictable boundaries as to what constitutes a criminal act.
Saudi rights activists formed the Committee for the Defense of Legitimate Rights in 1993. Saudi authorities did not approve its establishment and arrested most of its members. The group advocated greater protection of certain human rights and opposed the presence of United States troops in Saudi Arabia. Its formation, and the arrests of its members, came on the heels of the promulgation of the Basic Law of 1992, which stated that "The State shall protect human rights in accordance with Sharia." In this instance what trumped the Basic Law's exceedingly loosely-worded guarantees is its own Article 39, a provision that judges have used to sentence activist dissidents to jail terms for trying to form associations or speak against government policies and actions. Article 39 provides, "It is prohibited to commit acts leading to disorder and division, affecting the security of the state and its public relations, or undermining human dignity and rights." Sharia jurisprudence contains some guidance on what acts cause disorder and division (fitna-sedition) but, in the absence of a penal code, these are not predictable rules and do not give adequate notice as to what constitutes a crime.
On March 16, 2004, the government arrested 12 proponents of political and constitutional reform. Three of the 12, Ali al-Dumaini, Abdullah al-Hamid, and Matrook al-Faleh, refused to sign a pledge while in detention to desist from all future reform efforts, a condition of their being released. The Greater Riyadh Court on May 15, 2005, sentenced them to nine, seven, and six years in prison, respectively, for petitioning the king, circulating the petition to others, and publicizing it through domestic and foreign news outlets. The judges found the defendants guilty of discussing reform issues that "they did not consider as discretionary public interests [maslaha mursala] which, accordingly, the ruler [alone has the right to] consider to decide what of [the reform issues] further his interests for the country." When then-Crown Prince Abdullah became king in August 2005, he immediately issued a pardon for the three reformers as well as their lawyer and supporters who had also been detained.
This case illustrates the wide latitude judges have, in the absence of a written and clear penal code, to determine what is legal and what is forbidden. This wide latitude enables judges to criminalize peaceful advocacy. In this case, this resulted in prison sentences for individuals who were simply exercising rights protected under international human rights standards-the rights to freedom of association and freedom of expression. In a meeting in Riyadh on November 28, 2006, Ali al-Dumaini, Abdullah al-Hamid, Matrook al-Faleh and others told Human Rights Watch that Saudi laws provide no protection for human rights activists engaged in peaceful advocacy, and human rights activists cannot challenge the authorities when they prohibit the exercise of certain rights. For example, officials did not respond to a petition signed in March 2003 by 50 persons from all over the country to form a human rights organization. A renewed effort to form a human rights organization in April 2006 also met with no response. Security forces dispersed a protest in solidarity with the Palestinian and Lebanese peoples in August 2006 and a similar protest three months earlier demanding employment for the unemployed.
The police in August 2006 arrested women's rights activist Wajeha al-Huwaider for standing on the bridge connecting Bahrain and Saudi Arabia with a sign reading "Give women their rights." Al-Huwaider's intent to demonstrate publicly and peacefully is clear, but she had no way of knowing that her exercise of her right to free expression, while perhaps socially risky, constituted an arrestable offense. Six weeks later, the secret police (mabahith) arrested her, believing she was planning a women's protest for Saudi Arabia's National Day on September 20. They released her after her brother, acting as her guardian, signed a pledge that she would not protest publicly again.
Ahmad was not so lucky. He participated in a peaceful demonstration in Riyadh calling for reform in October 2003, which Sa'd al-Faqih, a leading Saudi dissident living in the UK, had instigated via the media. After Ahmad's arrest on October 12, 2003, a judge sentenced him to one-and-a-half years in prison for participating in the demonstration. He obtained his release after 10 months, but on October 29, 2004, he was again arrested and spent two years in prison before Judge Ibrahim Abd al-Rahman al-'Atiq on October 5, 2006, sentenced him to three-and-a-half years in prison for "agitation of public opinion."
Codifying criminal acts into a law that is consistent with international human rights standards may not eliminate political suppression of peaceful demonstrators, but it will lessen the ability of Saudi law enforcement and judicial officials to claim a legal basis to persecute and prosecute individuals for exercising their rights.
The protections against arbitrary decisions that codifying criminal law provides go far beyond securing human rights of association and assembly. Proponents of codifying aspects of Sharia appear to be gaining ground. When, in 1990, the king issued a law codifying rules of procedure for Sharia courts, "fully vetted" by senior scholars, the law, "had to be abrogated within weeks as a result of widespread objections among … especially the judges," according to one commentator. Ten years later, the king was able to issue the law, and, two years after that, the law on criminal procedure. As debate about codification of criminal offenses and their attendant punishments resurfaced, Saudi lawyer Khalid al-Newaisier in 2007 wrote that "The codification of the judicial rules will help in completing the deficiency in the legal rules," and lead to important benefits, including "tackling the short[comings] which may occur in the legislations."
Even senior scholars are now in favor of codifying criminal offenses. A member of the Council of Senior Scholars, Shaikh Abdullah al-Mani', told the pan-Arab daily newspaper al-Sharq al-Awsat in March 2006,
I have been calling for [codifying the laws] for over 25 years. I called for codification according to the four schools of thought, not only the HanbaliSchool. If an official party took on this responsibility it would undoubtedly reduce differences and would constitute a strong factor in hastening the verdict in judicial proceedings. It would also make rulings much clearer for litigants before going to court.
IV. Absence of Rules of Precedent
In addition to codifying elements of criminal law, Saudi intellectuals, religious scholars, and government officials have discussed the benefits of setting boundaries to judicial sentencing discretion. Currently, two types of crimes, crimes against God (hadd) and crimes giving the injured party the private right of retribution (qisas), have relatively well-defined punishments. The Quran lays down punishments for hadd crimes, although scholars differ on the circumstances of their applicability, and qisas crimes follow the rule of equal retribution: a murderer may be killed, and whatever injury a criminal causes, the injured party may ask the state to inflict that same injury on the criminal, but the injured party or his or her heirs may also accept compensation or grant a pardon. The vast majority of criminal cases, though, relate to discretionary (ta'zir) crimes, in which the judge has discretion over the definition of what constitutes a crime and over the sentence, without being bound by judicial precedent.
The widely differing sentences judges in two courts reached in two unrelated cases of kidnapping is one example of absence of sentencing guidelines for judges. In one case, three judges sentenced four of the seven men who had raped a young woman and a young man in Qatif in early 2006 to between one and five years in prison, and between 80 and 1,000 lashes, for kidnapping, apparently because they could not prove rape to the legal standard required. (The case, which achieved international notoriety following a new ruling on appeal in November 2007, is discussed further in chapter VII, section "Summary Justice, Perverted Justice.") Meanwhile, al-Watan newspaper reported in August 2005 that an appeals court upheld a judge's sentence of 15 years in prison and 8,000 lashes for a childless woman who had kidnapped a two-year old child whom she had found wandering in the holy mosque in Mekka.
In a study of Saudi judicial rulings, Frank Vogel, a professor of Islamic legal studies, described the differences between the "Western concept of law [as] a system of formal, objective, publicly known, generally applicable, compulsory rules" and what he called the "microscopic" conception of Islamic law, in which the judge rules on "a particular, concrete event" "striving to draw as near as possible to God's true evaluation for each particular event," and in which "the legitimation of law arises solely from the individual conscience, as it contemplates the revelation." Vogel added that from a Prophetic tradition it follows that "[t]ruth is the ultimate precedent, to which one must return once it is revealed … There is no rule of precedent, stare decisis, in Islamic law."
Saudi scholars, however, are moving away from this notion of the judge as a seeker after God's will in each particular case and increasingly agree that there should be formal and observable limits to ta'zir punishments. Some of their arguments are simply for the sake of expediency: A rulebook classifying certain crimes and adherent punishments, they argue, would greatly facilitate and speed up the task of overworked judges and assist lawyers in arguing their cases.
Lawyer Khalid al-Newaisier wrote that such institutionalization of rules of precedent "will save the time, effort and expenditure when these rules are constant, and also will help the lawyers to submit the legal opinion to their clients in any suit they think to raise, and thereby to avoid the advance litigation procedures." Newaisier added that such institutionalization would assist lawyers in "compiling the courts['] judgments [and] following their evolution with the aim of [attaining] general attitudes [of the judiciary]."
In a study for the NaifArabUniversity for Security Sciences in Riyadh, Dr. Muhammad al-Madani Busaq lists four general objectives of punishment in Islamic legislation: general deterrence; specific deterrence; neutralization of crime impact; and correction of the criminal. He then lists possible discretionary punishments for crimes (other than hadd, qisas, and statutory crimes), such as non-observance of prayers or kidnapping, ranging from counseling and admonishment to curtailment of rights and benefits, restitution, exile, imprisonment, fines, flogging, and execution. It seems a small step from presenting judges with this range of punishments to creating a comprehensive catalogue of crimes with attendant penalties.
In September 2004 Jawhara al-Anqari, of the National Society for Human Rights, advocated putting limits on discretionary punishments, according to a report in al-Watan newspaper. The Ministry of Justice seems to have taken some small, initial steps in this direction. On December 9, 2006, the chief administrator at Jeddah Partial Court showed Human Rights Watch a booklet, which he described as a sentencing guide for judges. On the first page this booklet listed a table, with the first column containing a broad description of crimes, other columns showing special characteristics of the criminal acts, and a last column with a range for sentences. On March 13, 2007, the Ministry of Justice announced that it was publishing certain rulings in an attempt at greater transparency and further development of Saudi jurisprudence, in accordance with Cabinet Decree 162 of August 26, 2002, but that these and future collected rulings would not be binding on judges.
These small steps represent progress, but do not detract from the larger necessity to derive from Saudi jurisprudence, both in its theoretical and applied form, common parameters to ensure that punishment for similar crimes is not left entirely in the hands of judges, who have issued widely disparate judgments for the same acts.
V. Other Legal Gaps
There are significant gaps between the statutory laws that the government has passed and international human rights law. Saudi law contains a number of legal safeguards which should protect an individual if he or she is arrested and detained. An arrested person has the right to inform anyone of his or her choice of his or her arrest; an arrested person has the right to have a lawyer or personal representative present during any investigation; and the prosecutor must inform the arrested person of the charges. But there are deficiencies in the way some of these safeguards are formulated, and Saudi law also contains glaring omissions in human rights protections, including a lack of the rights to inform others of one's arrest, of access to a lawyer, of the right to be promptly charged and speedily tried, to have the means to prepare a defense, and to challenge the lawfulness of one's detention.
Right to Inform Others of One's Arrest
Rule 92 of the UN Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules) provides that
An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.
Foreign detainees "shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong."
Rule 35 of the Standard Minimum Rules provides that
(1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution. (2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him orally.
In 1988 the UN General Assembly adopted a Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), further strengthening international standards of detention. Principle 15 states that a detained person's "communication … with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days." The detainee has a right to notify, or have the authorities notify, "members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody."
Article 35 of the Law of Criminal Procedure provides that anyone arrested or detained "shall be entitled to communicate with any person of his choice to inform him of his arrest," but fails to set a timeframe, specifying only that such communication should occur promptly after arrest or after the transfer between holding facilities. Shaikh Muhammad Al Abdullah, the head of the Bureau of Investigation and Public Prosecutions, informed Human Rights Watch that "a detainee has the right to make a phone call to anyone."
Saudi law is more restrictive than Al Abdullah's statement suggests. Of particular concern is a provision that gives prosecutors the right to keep suspects in incommunicado detention for up to 60 days. Article 119 of the LCP states, "In all cases, the investigator shall be entitled to stop the accused from communicating with any other accused or detainee, and to stop any visit to such accused for a period not exceeding sixty days whenever that is deemed necessary, without prejudice to the right of the accused to communicate with his representative or attorney." Article 119 does not define "communicate," and leaves open the possibility that prosecutors may restrict a detainee's contact with his or her lawyer to written or telephone communication (see Appendix). Following his visit to Saudi Arabia in 2002, the UN special rapporteur on the independence of judges and lawyers touched upon incommunicado detention in his report. "Experience has shown in other countries that prolonged detention, particularly where it is incommunicado, provides the conditions for the violation of a detained individual's rights," he wrote. "Even with access to a lawyer, other individuals, particularly family or consular officials, are an important safeguard for the well-being and the rights of the accused."
When the mabahith arrested 10 persons in Jeddah and Medina in February 2007 (see chapter VI, section "Arrests Without Warrants"), officials did not permit them to inform their relatives or lawyers of their whereabouts or the reasons for their arrest, with the exception of one detainee, Aiman, who had contact with his wife during a brief period when he was hospitalized. Five of those arrested had been meeting at Basrawi 's villa just north of Jeddah.
Basrawi's family learned of the events only because the mabahith let the driver and two domestic servants working for Basrawi go after the arrest. Fadhil's wife, Laila, told Human Rights Watch that she had expected her husband back around . When he didn't come, she called the traffic police and the hospitals, but they did not have a record of her husband. She then called the mabahith, who told her they had no record of arresting Fadhil, but would follow up. Over the following days, she was unable to locate her husband. Laila told Human Rights Watch that the mabahith told her, "We are not holding him." The relatives of others were able to confirm that the mabahith was holding them at the new Ruhaili / 'Isfan facility northeast of Jeddah, by going to the prison.
On February 23, 2007, a Saudi security consultant confirmed to Human Rights Watch that Fadhil was being held there and that visits for the family were now allowed. On February 26, however, Rafiq, the son of one of those detained, Kamil, said that his family had not been able to visit Kamil at the facility and that none of the detainees, after three weeks in detention, had been able to communicate with the outside world. In July 2007 a relative of one of the detained men told Human Rights Watch that family visits had started one month earlier.
Some detainees in al-Ha'ir Correctional Facility told Human Rights Watch that they have five or 10 minutes, once or twice a week, to make calls. However, none was able to contact friends or family at the time of their arrest.
Time is of the essence especially for foreign detainees, who need to call their embassies to intervene before they can be deported, a process that is supposed to take not more than three days. Denying a detainee contact with the outside world and holding him or her incommunicado may also facilitate torture and ill-treatment. As Nigel Rodley, then-UN special rapporteur on torture, wrote in 1999:
Based upon information received over the course of the past seven years, the Special Rapporteur is of the view that incommunicado detention is the most important determining factor as to whether an individual is at risk of torture. As such, the Special Rapporteur reiterates the recommendation of his predecessor and urges all States to declare incommunicado detention illegal.
The consequences of not being able to contact the outside world can quickly bring on despair. Rami, a 38-year-old Palestinian who was born in Saudi Arabia and lived all his life there, despondently told Human Rights Watch that the passports department in Jeddah arrested him as he tried to routinely renew his residency permit in February 2007 because he had been working for an employer who was not at the same time his sponsor. Rami told Human Rights Watch that the passport official
arrested me, searched me, taking all possessions, including my mobile phone, and brought me to the deportation center. I have been here 23 days now. Everything is forbidden here. No visits, no telephone calls-there are no public telephones, you cannot get outsiders to bring you food or clothes. We share a smuggled mobile phone among four or five people here. There are frequent searches and it is forbidden. I managed to call my brother and three or four days ago my brother came to the deportation center and tried to bring me clothes, but he was not allowed to see me or give me clothes.
Contact with the outside world, a fundamental right of detainees, is also necessary to obtain legal counsel and prepare a defense. Four Sri Lankans arrested in March 2004 for armed robbery were unable to inform their embassy until after their trial had begun, almost one year later. They were taken from their cells to be executed without notice and had no opportunity to inform their embassy. A spokesperson for the embassy said, "We are shocked, we never expected any of this," and added, "We made an appeal asking for clemency."
Right of Access to a Lawyer
Saudi Arabia has only recently begun to give serious consideration to the role of defense lawyers. The 2001 Code of Law Practice sets forth rights and duties of the legal profession. Despite a rising number of legal (including Sharia) consultants, Human Rights Watch does not know of a single professional full-time criminal defense lawyer in Saudi Arabia. Abd al-Rahman al-Lahim, one of the few lawyers to take up such work at all, has represented clients in a number of high-profile cases, including a couple subjected to a judicially sanctioned forced divorce, the rape victim who was sentenced to 90 lashes for "improper mingling with the other sex," and a young journalist arrested for "harboring destructive thoughts."
Articles 10 and 11 of the Universal Declaration of Human Rights set out the core concepts of the right to a fair trial and Article 14 of the International Covenant on Civil and Political Rights, to which Saudi Arabia has said it will soon accede, specifically provides for the right of a defendant
to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.
The Arab Charter on Human Rights, which the Arab League re-drafted and approved in 2004 (Saudi Arabia acceded the same year), and which entered into force in 2007, closely mirrors the due process provisions of the ICCPR.
Principle 13 of the UN Body of Principles states that "at the moment of arrest … or promptly thereafter," the authorities must inform the detained person of "his rights and how to avail himself of such rights." Rule 93 of the Standard Minimum Rules provides that "an untried prisoner shall be allowed to apply for free legal aid where such aid is available," and to obtain "writing material" and to be able to communicate confidentially in writing and in person with a legal adviser. Principle 17 of the Body of Principles underlines that detainees are "entitled to have the assistance of a legal counsel," free of charge "if he does not have sufficient means to pay." A detainee shall be "informed of his right … and shall be provided with reasonable facilities for exercising it."
Saudi law omits two important aspects of the right to legal counsel. First, it contains no provision for the right to be informed of the protections guaranteed under the law. Second, it does not protect the right to have legal counsel provided free of charge to those who cannot afford to hire one. Article 223 of the LCP foresees the publication of "implementing regulations" to the law, but nearly five year after its passage, none has been published.
A third shortcoming of Saudi law is its ambiguity over when a detainee may have access to legal counsel. Article 1 of the UN-agreed Basic Principles on the Role of Lawyers recommends that access to lawyers and legal services be available "in all stages of criminal proceedings."
The LCP refers to the right to legal counsel in a number of articles. At the outset, article 4 states, "Any accused [or charged] 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 specifies that under no circumstances may the investigator remove legal counsel, once the defendant has hired one.
Articles 35 and 116 give the arrested person the right to communicate with any person of his or her choosing, but the LCP fails to provide for the right to legal counsel from the moment of arrest, while stipulating that a first interrogation may take place within 24 hours, possibly before the right to legal counsel can be invoked. Head of the Bureau for Investigation and Public Prosecutions Shaikh Al Abdullah told Human Rights Watch, "The law does not say that we have to wait for a lawyer to show up before we start an interrogation. We will not hold somebody forever." While human rights law does not provide an absolute right that a lawyer be present during questioning, the right of access to a lawyer does mean that the detainee should have some opportunity to seek advice from a lawyer either before or during questioning. Otherwise potential breaches of other rights such as the right against self-incrimination may occur.
Finally, Article 70 raises questions as to what legal advice, if any, the lawyer may give a client during an ongoing interrogation, and seems to impinge on the right of confidentiality between lawyer and client:
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.
Knowing of the right to a lawyer
Saudi law does not oblige the authorities to inform a detainee of the right to legal counsel, rendering its exercise contingent upon the detainee already knowing of this right and requesting a lawyer. Most persons Human Rights Watch spoke to did not know they have a right to a lawyer, or that by law their lawyer could attend interrogation sessions. None of the over 60 inmates interviewed by Human Rights Watch said the authorities had informed him of the right to counsel. Ibrahim al-Juhaiman, the head of the prosecution service in charge of investigations and prosecutions, told Human Rights Watch that a suspect is "informed of [his or her] rights to appoint a lawyer or representative." He explained further, "The law does not require the presence of a lawyer but the suspect has the choice to have one, and lawyers can attend interrogations." Shaikh Muhammad Al Abdullah, the head of the prosecution service, added that the suspect "is free to defend himself."
A prisoner in al-Ha'ir prison contradicted these claims, telling Human Rights Watch,
I was arrested because I was in a fight and was stabbed and I also beat the [others], and when I went to complain [to the police] I was arrested. I didn't ask for a lawyer. No one told me I had a right to a lawyer. I was held for three months and 20 days before I saw a judge.
In March 2004 the government arrested 12 prominent political reform advocates and later released nine. One of the three kept in detention and later tried and convicted, based on their public petitions for constitutional and political changes (see chapter III, above), told Human Rights Watch that a visitor gave them a copy of the Saudi Law of Criminal Procedure while they were detained in the mabahith's 'Ulaisha detention center in Riyadh. They learned of their right to a lawyer and to be tried within six months of their detention only upon reading the document, and promptly demanded these rights. The detainees were able to appoint a legal defense team, but the government, in turn, arrested Abd al-Rahman al-Lahim, their chief defense lawyer, in November 2004, for having spoken to Al Jazeera television about his clients.
Most of the detainees Human Rights Watch spoke with in al-Ha'ir prison were under the age of 30, and several were foreigners who did not speak or read Arabic proficiently and had little if any knowledge of Sharia provisions of criminal law. Al-Ha'ir Correctional Facility Director Zhafir al-Haqbani told Human Rights Watch that there were no translators at the prison. He said that, unlike at interrogations or trials, they were not vital in the prison, and that fellow foreign prisoners with good Arabic translated when the need arose.
One of four arrested Sri Lankans later executed told Human Rights Watch that he did not know of his right to have a lawyer. His embassy, with which he was initially denied contact (see above), told him after his trial had begun that it was too late to hire a lawyer. Eight non-Saudi inmates at al-Ha'ir's Exemplary Wing 18 holding detainees of good behavior told Human Rights Watch in November 2006 that officials had informed none of them of their right to inform their relatives of their whereabouts or to appoint a lawyer. Two inmates said that they had asked for lawyers. In one case, officials refused his request; only one was able to obtain legal counsel in preparation for his trial.
Obligation to Charge Promptly
International law obliges states to formally charge defendants with the offense that they are alleged to have committed. We have not listed accounts of persons whom Saudi law enforcement officers did not promptly charge with an offense, because this report cites numerous examples of the failure to charge defendants throughout. We have limited ourselves to a discussion of the shortcomings of Saudi law.
Article 9.2 of the ICCPR and Principle 10 of the Body of Principles identically provide that "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." Charges must include, as the UN Human Rights Committee (the body of experts that reviews states' compliance with the ICCPR) laid out in its interpretation of article 9 of the ICCPR, an "indication of the substance of the complaint."
Saudi law echoes international law, at least on some procedural requirements. Article 116 of the Law of Criminal Procedure gives the arrested person the right to "be promptly notified of the reasons for his arrest or detention" and the investigator (in Saudi Arabia, this is also the prosecutor) must inform the detainee of the charges "when the accused appears for the first time for an investigation," which has to be within 48 hours (Article 34).
As noted above, Saudi Arabia has not codified its criminal offenses, nor is there any clarity in the case law, with the result that the criminal law in this respect is neither accessible nor reasonably foreseeable. This deficiency in Saudi criminal law hinders the ability of law enforcement officials to inform detainees of the substance of the complaint. The head of the prosecution department, Ibrahim Juhaiman, told Human Rights Watch, "You will never find out the exact crime until the end of the investigation. Then you can determine the crime. No charges are filed until after the investigation." Nevertheless, international standards require the authorities to file substantive formal charges promptly, and to inform the defendant of them.
Saudi law does not specify whether the process of charging a suspect involves a formal, written procedure in which the elements of the crime are specified, and whether the accused should be informed of the evidentiary standard used to establish that the accused person has in fact committed the crime(s) in question (see Appendix).
The absence of a penal code or similar set of laws making clear what are and what are not criminal offenses renders arrests and prosecutions inherently arbitrary as the lack of legal specificity means that whether particular behavior constitutes an offense is essentially a subjective assessment. This vagueness leaves the door open for prosecutors to fit the crime to the act, as opposed to their obligation to prove the defendant has committed clearly defined elements of a specific crime.
Under Saudi law, the court can alter, or permit the prosecutor to alter, the charge. Article 159 of the Law of Criminal Procedure states, "The court shall not be bound by the description included in the memorandum of the charges. It shall give the act the proper description even though the description is not compatible with the memorandum of the charges, and shall advise the accused accordingly." Article 160 states, "The court may, at any time, permit the Prosecutor to amend the memorandum of the charges at any time. The accused shall be notified of such amendment and be granted sufficient opportunity to prepare his defense with respect to such amendment, according to law."
Furthermore, the basis for charging a suspect with a crime in a formal legal procedure may well differ from the reasons law enforcement officials cited to justify arresting a suspect initially. The legal standard of proof required for carrying out an arrest is generally lower than that required for charging a person with a crime. In flagrante arrests rely on the judgments of law enforcement officers who most likely do not have advanced legal training. The circumstances justifying arrest may vary from case to case, but must be reasonable and communicated to the detainee. Charging a suspect, or arresting a suspect pursuant to a prosecutor's arrest warrant, on the other hand, requires a legal analysis matching the available facts to the provisions of the law. This difference is the chief reason why the period the law in most countries grants law enforcement officers before having to produce a suspect for formal charges is short, commonly only 24 hours, and, in Saudi Arabia, between 24 and 48 hours.
Obligation to Bring to Trial without Undue Delay
Fair trial standards require that defendants receive a speedy trial. The prosecution must not unduly delay bringing a case to trial, and the court must not unduly delay adjudicating a case on its merits. Excessive delays in adjudicating a detainee's case in court can render his or her continued detention unjustified and therefore arbitrary. Saudi law sets an absolute limit of six months on pretrial detention before a detainee's case must reach the courts, but does not provide legal guidance on what may constitute unreasonable delay either during those six months or once a trial has begun. Saudi law does not give detainees the right to challenge the lawfulness of their detention before a court and obliges prosecutors to meet only administrative, but not substantive or evidentiary, requirements for issuing orders for the continued detention of suspects for periods of up to six months. Rather than protect the right of suspects to seek relief from a judicial authority, Saudi Arabia effectively places their detention at the discretion of the prosecution service.
Lawyer 'Azzam told Human Rights Watch, "If the accused asks for a postponement, the next [court] session must be within 45 days. This is not a matter of law, but a common practice." Tawfiq, a Yemeni man in Buraiman prison, however, told Human Rights Watch that he had not been summoned for a second hearing in his case for over one year. The first hearing consisted only of reading out the charges and notarizing statements he made in police interrogations. In another case, Nasir described to Human Rights Watch the trial of his younger brother 'Amr:
The first session of the trial, the hearing of and response to the charges [sama'], took place eight months after 'Amr's arrest. We had been pressing the court for months to proceed with the case, but didn't know when it would finally happen. After the first session, the judge refused to schedule the next session. He even expelled us, 'Amr's relatives, from the courtroom after we said that this was against the laws of the judiciary and demanded that he fix a time for the next hearing.
Prisoners who remain arbitrarily detained without trial beyond the six-month limit specified by law are unable to challenge their continued detention. The National Society for Human Rights began prison inspections in 2004. Al-Riyadh newspaper quoted the society as saying that detainees remained in prison "for long periods without being brought to trial" and that it considered this to be "an infraction of the law." Fifteen months later, another Saudi daily, Arab News, wrote that the National Society for Human Rights had informed the Ministry of Interior about "complaints it received from some prisoners or their families about delays in hearings, being imprisoned longer than the terms of their sentences, being forced to register false confessions or being detained under tenuous suspicions." This report prompted the head of the Saudi prison service, Maj. Gen. Ali al-Harithi, to promise that no prisoner would be held for more than six months without trial.
On February 22, 2006, al-Riyadh