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A lack of pre-trial rights for defendants accused of spying for Iran

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On 21st February 2016, the trial of dozens of detainees accused by the Saudi authorities of spying for Iran began.

The defendants were segmented into groups in the opening session, and the trial was scheduled to last 5 days starting from 21st February until 25th February. One of the official press reports about the case, pointed out that there are 32 defendants involved in the case (previously they were 27 according to the report), from which 28 of these individuals are known and ESOHR have published their names in a previous report.

On 17th March 2013, the Saudi authorities begun a series of arrests in different cities, which at the time coincided with official media coverage that intensely focused on their accusations of espionage linked to Iran, which violates the presumption of innocence of the accused. This was met with a statement that was issued by the citizens who know the detainees, in which they denied the allegations of Interior Ministry.  The Ministry responded by proceeding to target all those who signed the statement, and they were met with arbitrary arrests and travel bans for terms of up to three months, as well as an investigation which included charges as going against king, discrediting the state and they were asked to take a pledge not to sign any statement.

Despite the referral of the case to the SCC after nearly three years, the Saudi media (which is controlled by the Interior Ministry), have adopted a narrative and language regarding these cases, which reinforces indictments against these against detainees, raising serious doubts about the trial. Another other most dangerous factor, is the forcing detainees to make certain confessions that have been recorded video.

Legal experts believe that in order for a trial to be considered fair, a number of rights must be considered when depriving a person of their liberty, which start from the first instance of arrest (or suspicion of a crime), with many detention and pre-trial rights, whilst the second body of in-trial rights begins at the start of the trial until the last legal stages to pass judgment, including the right to appeal. According to our monitoring, ESOHR found that the defendants were denied their pre-trial rights, what means that the trial will lacks from the basic tenets of adequate administration of justice. The non-availability of these rights constitutes a breach of the terms and principles of a fair trial contained in treaties and charters Saudi Arabia have joined, which include:

1-      The right to liberty: The arrests of the defendants is a violation of their right to liberty and security, which are provided for in Article 3 of the Universal Declaration of Human Rights: ‘Everyone has the right to life, liberty and security of person’, where they were arrested without any arrest warrants or direct or concrete evidence, that confirm the charges brought against them.

2-      The right to counsel before the start of the trial:Detainees should be able to access to a lawyer since the beginning of detention, including during interrogation … in an atmosphere of confidentiality and privacy’ [1]. Saudi authorities prevented prisoner’s accused of espionage of their right to seek legal counsel before the trial and during the investigation period. The presence of a lawyer in the interrogation sessions would provide protection for the accused from torture or ill treatment, as it helps the accused to know the legal options open to him, including the right to challenge the legality of detention.

3-      The right to communicate with the outside world: From the moment of their arrest, their right to communicate with the outside world it was not granted, such acts lead to psychological harm, such prohibition from external communications varied, with some not being given this right for three months, in violation of the International Convention for the Protection of All Persons from Enforced Disappearance Article 17 (2, d ): ‘Ensure that every person deprived of liberty permission to contact his family or his lawyer or any other person of his choice, and receive their visit, subject only to the conditions set forth in the law, and to ensure that foreign for permission to contact the consular authorities when his country in accordance with international law applicable’ .

It also violates Article 14 (3) of the Arab Charter, that provides the right of the accused ‘contact with his family’.

Furthermore, some of the detainee’s families did not know the whereabouts of their children at the arrest, and the authorities on occasions did not guarantee them visits on a regular basis, especially during the period in which the authorities said that they were under investigation.

4-      The right to appear to a judge promptly: The appearance of the detainee’s accused of spying before a judge  three years after the date of their initial arrest is a clear violation of local and international laws. Legal experts confirm that being brought before a judge is an important right that should be done promptly for several legal reasons, while some provisions stipulate that it should be done within 48 hours after arrest.

5-      The right to appeal the lawfulness of detention: Because of the many legal abuses carried out by the Saudi authorities towards the detainees, and in view of the difficulties faced by the detainee or his family, the detainee’s feel that the right to appeal the lawfulness of detention is elusive, and it should be noted as that many of the defendant’s have not been informed of this right. The absence of a lawyer during the pre-trial period, makes the accused incapable and unaware of any legal steps and ignorant regarding his rights. According to the nature of the political prisons in Saudi Arabia, this pre-trial period represents the most dangerous period for the detainee, due to the risk of being subjected to torture and mental and physical insults and humiliation.

6-      Right to prepare a defence: Adequate space, time and facilities: Since their first moment of arrest, official Saudi media (which is controlled by the state), have accused the detainees before any investigation was undertaken. The legal environment in Saudi Arabia does not contain a serious possibility to prosecute these illegal charges that were (and still are) being promoted by the media. The accused in Saudi Arabia can defend himself effectively only once the trial starts (regardless of the time spent in pre-trial), and there is no equality of arms between the prosecution and the defense on this right. The first session of the trial opened in the SCC was clearly biased towards the case of the Prosecutor, whereas the defense cannot begin to put forward their case until the second session of the trial. However, in some cases, judiciary powers are limited and are made cooperate to prevent the defense to more than therefore. In the case of  Sheikh Nimr Al-Nimr, they did not give him facilities to present his defense except in the seventh meeting, which was held after the 448 days of the first session.

Theoretically, it is possible to prepare a defense before the start of the trial if a defendant is informed of the charges against him, and if he is given the necessary facilities to call his lawyer in an atmosphere of secrecy However,  this is not available  according to the judicial procedures in Saudi Arabia.

7-      The right to humane conditions during detention and preventing from torture and other ill treatment: Detainees accused of spying were subjected to a violation of their right to humanitarian conditions in detention. Furthermore, some of the more elderly detainees didn’t get the necessary medical care, and conditions of detention were inhumane. A number of them have been subjected to physical and psychological torture. This includes deprivation of sleep, being forced to stand for hours, also there were effects of burns on hands, and incommunicado solitary confinement for more than two months, and harassment during the performance of their worship. The Convention against Torture, which Saudi Arabia ratified, prevents any justification of torture or other ill treatment, regardless of the exceptional circumstances or terrorist threats or the severity of the charge.

ESOHR sees that the lack of these basic rights, means the necessary pre-requites in terms of pre-trial, as well as in-trial rights are absent. The increasingly harsh judgments, where many detainees are now at risk facing the death penalty, imposes real concerns regarding the conduct of the trial of the defendants of espionage.