禁止酷刑委员会审议沙特阿拉伯的报告（部分翻译）

禁止酷刑委员会

2016年4月25日

禁止酷刑委员会今日下午结束审议沙特阿拉伯关于落实《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》条款情况的第二次定期报告。
 
沙特人权委员会的纳塞尔•本•拉吉•阿尔沙拉尼（Nasser Bin Rajeh Al-Shahrani）在提交报告时表示，沙特阿拉伯反酷刑战略源自伊斯兰教法（Islamic Sharia）和《公约》条款，并得到第43号皇家法令（1958年）的补充，可对滥用行为处以十年监禁。政府目前正在制定打击滥用权力的新立法，并在其中包含与《公约》相符的定义。新的刑事诉讼法包含了在调查和审判阶段的保障，并禁止对被告方的酷刑和虐待。新刑事诉讼法规定，若被告方在经济上无力承担，国家必须为被告方支付法律代表费用。2015年通过的一项法律规范了法律专业，强化了律师保护人权的作用。阿尔沙拉尼先生强调了与人权事务高级专员签订的技术合作谅解备忘录的好处，备忘录覆盖了有关《公约》的各个方案。
 
对话期间，专家们对沙特阿拉伯使用鞭打、石刑和截肢等明显违反《公约》的体罚深表担忧。专家呼吁沙特阿拉伯废除这些刑罚，并将其减为符合国际标准的刑罚。专家们对死刑使用的显著增长表示担忧，这种刑罚有时用于未成年人或有精神健康问题者以及与毒品有关的犯罪，这是违反国际标准的。专家们同样担心拘留中的酷刑问题以及受害者出于对遭到报复的恐惧而不敢提交投诉。他们提出了对缺乏公平审判保证的担忧，其中包括获取律师渠道的缺乏以及使用以酷刑手段得到的供认。令专家们担心的还有镇压人权维护者和活动家的事件，以及滥用过于宽泛的打击恐怖主义立法以禁止政治异议。专家们列举了一些具体个案以引起代表团的关注。
 
阿尔沙拉尼先生在总结发言中表示沙特阿拉伯正在努力促进人权。酷刑是沙特法律中的一项罪行，国家也正致力于结束一切形式的酷刑。沙特阿拉伯与所有国际机制开展合作，并欣赏委员会的专业知识。
 
委员会将于4月26日（周二）上午10点举行下一次公开会议，开始审议土耳其的第四次定期报告（CAT/C/TUR/4）。

报告

沙特阿拉伯的第二次定期报告可在此查看：CAT/C/SAU/2。

Presentation of the Report

NASSER BIN RAJEH AL-SHAHRANI, Vice President of the Saudi Human Rights Commission, presenting the report, affirmed his country’s commitment to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as to the work of the Committee. The report of Saudi Arabia had been prepared in collaboration with civil society. Saudi Arabia had created in 2015 a standing Committee for the preparation of human rights reports and the follow-up of United Nations recommendations. This Committee had the mandate to collect data and to cooperate with civil society organizations.

Saudi Arabia’s anti-torture strategy derived from Islamic Sharia and the provisions of the Convention, and was supported by strong political will. Royal Decree 43 of the year 1377 Hijri (1958) was the main text complementing the dispositions of Sharia on the prohibition of torture, and condemned abuses with a sentence of 10 years imprisonment. The Government was currently working on new legislation to combat the abuse of power, which would contain a definition of torture in line with the Convention.

With regards to implementation, a number of measures had been adopted, including the establishment of a special centre to receive complaints of domestic violence. This centre had a hotline service and a fully female staff for supporting victims. New electronic means were being used for monitoring and control efforts. Civil society organizations also played an important monitoring role. Saudi Arabia attached great attention to the promotion and protection of human rights.

The new Penal Procedure Code included safeguards at the investigation and trial stages, and prohibited torture and mistreatment of the defendant. It provided that the State had to pay for legal representation of the defendant if the defendant did not have the financial means to afford this. A law adopted in 2015 regulated legal professions and strengthened the role of lawyers in protecting human rights. The Head of Delegation underlined the benefits of the Memorandum of Understanding for Technical Cooperation concluded with the High Commissioner for Human Rights, which covered programmes related to the Convention.

Questions by the Experts

FELICE GAER, Committee Member and Country Co-Rapporteur for Saudi Arabia, noted that Saudi Arabia had taken a long time to submit its second report, and looked forward to the dialogue with the large delegation of Saudi Arabia. She stated that the Committee had received information from non-governmental organizations, which was welcome. Experts would therefore raise allegations coming from such organizations.

In its previous review of Saudi Arabia, the Committee had regretted that the definition of torture in the Convention was not incorporated in domestic law, she noted. She therefore welcomed information that a draft criminal code would include such a definition, and asked whether it would be in line with the provisions of the Convention.

She noted that corporal punishment, including flogging, stoning and amputations, was prohibited under the Convention. She expressed concerns about the particular case of Ra’if Badawi, a blogger sentenced to 1,000 lashes, and for whom the United Nations Special Rapporteur on Torture had issued a number of urgent appeals. She regretted that the Government had not responded specifically on this case in its responses to the list of issues. She therefore reiterated the Committee’s request for information on this case. She asked whether Saudi Arabia would repeal such sentences and would extend pardons to all those facing such sentences. Another Expert noted that many other Muslim countries had adapted their legislation to ensure that corporal punishments for Hadd offenses were replaced by other sentences. Committee Members generally raised grave concerns about the use of corporal punishment, which was absolutely prohibited under the Convention.

The Co-Rapporteur noted allegations of torture and ill-treatment in prisons and other detention centres, and referred to the case of Waleed Abu Al-Khair, a human rights lawyer who reportedly was subjected to torture and ill-treatment in prison. She asked whether reports on monitoring of prisons were made public. She referred to the State party’s report, which mentioned that foreign diplomats had visited Saudi Arabia’s prisons, and had issued no complaints following these visits. She underlined that this statement was not credible, and that there was no country where abuses in prisons did not take place.

On legal safeguards, Ms. Gaer noted that in practice, persons in detention did not have access to a lawyer and were often interrogated in the absence of a lawyer. She asked whether Saudi Arabia would make it clear that detained persons had the right to access a lawyer and to contact their families. She also asked for data on the number of officials that had been condemned for refusing a detainee to access a lawyer or failing to inform a detainee of his or her rights upon arrest. The Co-Rapporteur noted that detainees often had no access to independent medical examination. She noted that some police facilities were equipped with CCTV equipment, and asked whether videos were accessible for lawyers. She referred to the case of Mohammad Salih Al Bajadi, co-founder of the Saudi Civil and Political Rights Association, arrested on 21 March 2011 and reportedly denied access to his lawyer. She also referred to Saud Mukhtar Al-Hashimi, a medical doctor, human rights defender and activist arrested on 2 February 2007 by agents of the Intelligence Services (Mabahith), reportedly held 156 days in secret detention without being permitted to consult a lawyer.

The definition of terrorism seemed too broad, she regretted, and could be used as a pretext to deprive people of their right to peaceful protest. Ms. Gaer raised the case of Alaa Brinji, a Saudi journalist sentenced to five years imprisonment on 24 March 2016 after being charged with “insulting rulers and inciting public opinion” and tried by the Specialized Criminal Court under the Anti-Terrorism Law. She asked whether human rights activism really constituted a threat to the peace and security of the country. Would Saudi Arabia consider reviewing its counter-terrorism law in order to align it with international standards?

With regard to fair-trial safeguards, she was concerned about a number of allegations of the use of confessions obtained through torture, about the lack of prosecution in that regard, and alleged reprisals against those making these allegations. She referred to the case of Fadhil al-Manasif, sentenced to 14 years in prison by the Special Criminal Court after the judge reportedly summarily dismissed his claim that his confession was obtained through torture. She also referred to the cases of Dawoud al Marhmoud and Abdullah al Zaher, 17 and 15 respectively at the time of their arrest, reportedly beaten and threatened by interrogators in order to compel them to confess to participating in protests, and convicted by the Special Criminal Court in 2014 on the basis of their confession. She asked whether Saudi Arabia would repeal the Special Criminal Court, in light of its shortcomings.

She then asked for information and data on the number of complaints received for acts of torture perpetrated by the authorities, and asked how many cases had been prosecuted and what sentences had been applied. What steps had been taken to sanction perpetrators of such acts?

Ms. Gaer then referred to arbitrary detention and reprisals against human rights defenders. She asked whether Saudi Arabia valued their work and accepted criticism they may have. Referring to the recent Universal Periodic Review of Saudi Arabia, another Expert noted that the country had accepted a recommendation made by the State of Palestine to guarantee the freedom and independence of human rights defenders. He asked what steps would be taken to implement this recommendation, and whether civil society organizations would be allowed to visit detention facilities.

KENING ZHANG, Committee Member and Country Co-Rapporteur for Saudi Arabia, welcomed the fact that Saudi Arabia had drafted its periodic report in cooperation with civil society organizations, and welcomed the information that the Government was covering the cost of legal counsel for those who could not afford it.

He noted that activities were undertaken to provide law enforcement officers with training on torture prevention, but regretted that such training seemed not to be compulsory.

The Co-Rapporteur echoed his colleagues’ concerns with regard to torture in detention and access to a lawyer. He asked whether steps had been taken to ensure the confidentiality of the discussions between a lawyer and his or her client.

He also expressed concerns about the low number of complaints received, which according to non-governmental organizations was due to fear of reprisals. He asked whether Saudi Arabia would create an independent complaint mechanism.

He also asked a number of questions on whether investigations on alleged torture cases had taken place, and on the number and type of prosecutions. Information was also requested on the number of torture victims who had obtained reparation, and on the amount of compensation they received. Was medical support provided to the victims? Another Committee Member asked whether defendants could directly refer to the Convention before the courts.

Mr. Zhang echoed Ms. Gaer’s concerns with regards to the use of false confessions obtained through torture.

He asked whether Saudi Arabia would repeal its legislation allowing for incommunicado detention and solitary confinement.

A large number of individuals were placed in pre-trial detention, leading to overcrowding and inhumane detention conditions.

Would Saudi Arabia take steps to ensure the protection of the rights to freedom of expression and of peaceful assembly? Would steps be taken to release those arbitrarily detained for peacefully expressing their opinion?

The Co-Rapporteur noted the high number of executions in the country, and asked what were the reasons for the increased use of the death penalty. Another Expert said that Saudi Arabia had the highest number of executions in the world, and raised concerns about minors and persons with mental diseases being executed. Experts recalled that the Committee on the Rights of the Child had already expressed grave concerns about capital punishment and corporal punishment applied to children below the age of 18. An Expert also noted with concern that the use of capital punishment had been extended to new crimes, including drug offenses, which were not considered as “most serious crimes”.

Referring to international human rights instruments, a Committee Member asked whether Saudi Arabia would repeal its reservations to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, allow individuals to file individual complaints to the Committee, and consider the possibility of acceding to the Optional Protocol to the Convention. Experts noted with concern that Saudi Arabia had not ratified, or had made reservations, to several other international human rights treaties.

Other Experts echoed the Co-Rapporteurs’ concerns on the lack of access to a lawyer upon arrest, and torture in police custody.

An Expert noted the existence of mechanisms in Saudi Arabia for monitoring and visiting detention facilities, and asked whether the Bureau of Investigation had access to all detainees, including those in solitary confinement.

Experts regretted that penal legislation had not yet been codified in Saudi Arabia, which prevented those in charge of implementing penal legislation from being held accountable.

An Expert noted that Saudi Arabia had a high development index, and that access to financial resources was therefore not a problem for the implementation of the Convention.

Experts welcomed the fact that rape was criminalized and that a hotline had been established for victims of domestic violence, and asked a number of questions on data and prosecution of such acts.

Experts commended Saudi Arabia for hosting a large number of Syrian refugees. They asked some questions with regard to asylum requests, deportation and non-refoulement. Ms. Gaer was concerned about reports of persons being deported to places like Somalia, South Sudan or Eritrea. Would Saudi Arabia accede to the 1951 Convention on the Status of Refugees?

Ms. Gaer noted that children faced high risks of trafficking and enrolment by criminal gangs. Trafficking victims should be identified, she said, regretting the absence of a mechanism in Saudi Arabia for such identification.

Replies by the Delegation

A delegate thanked members of the Committee for their remarks, but noted that some issues would not be agreed upon between the delegation and the Committee. Saudi Arabia had criminalized torture in 1958, more than 20 years before the Convention entered into force. There was a strong political will to combat torture.

Arrested persons were automatically informed of their rights, a delegate said. Reforms were introduced to guarantee fair trial safeguards and protect detainees. When violations were committed, there were guarantees that the perpetrator would be held accountable. There was a strong regime of accountability, and no person could escape it. Victims were provided with compensation and alleged cases were investigated and prosecuted.

The delegation said that two years earlier, Saudi Arabia had published the programme “Vision 2030”, which was focused on human rights and principles that the Kingdom wanted to apply in the coming decades. Saudi Arabia had a strong will to succeed.

On the question of criminalization and definition of torture, it was explained that since Saudi Arabia had been instituted on the basis of Islamic Sharia, a 1958 decree provided for 10 year prison sentences for any officials proven to have behaved cruelly. Any person injured in the process could launch a complaint. Article 1 of the Convention was taken on board and it was possible to combat torture at the judicial level. Saudi Arabia’s accession to international treaties was based on royal decrees. The Prime Minister and Ministers were called upon to institute all of the Articles in the Convention. Necessary measures were provided for the implementation of various articles of the Convention. Saudi Arabia’s definition of torture was basically the same as that in the Convention. The Criminal Code was being currently updated with regard to the abuse of power. The Human Rights Commission organized year-round seminars and training for court officials and was helping disseminate information on human rights. The Commission published communications on combatting torture. Verdicts against all officials who had abused power were published. Inhuman, cruel and degrading treatment, which did not reach the level of torture, was also punishable.

Saudi Arabia had taken account of the recommendation of the Special Rapporteur on the independence of judges and lawyers.

The delegation stated that by a 2014 royal decree, a commission composed of grand ullema (“religious wise men”) and senior magistrates had been tasked with preparing a code on judicial rulings and sentences pertaining to criminal law. It was not only criminal procedures which were covered; rather it was a combination of texts and provisions. The aim was to garner them and look at the decisions taken by various schools of Islamic religious thought. Occasionally, there were differences in opinion. Nevertheless, the Appeals Court was attempting to reduce the disparity and harmonize the system. The royal decree called for an establishment of a compendium containing a series of articles covering different fields of Islamic theology. Any interference with the work of the Commission was prohibited. The Commission had to be rigorous in selecting verdicts without favouring certain schools of law. The Judicial Rulings Code contained principles which criminalized any type of torture. A very clear description was given of torture.

Abuse of the position of power rendered any acts void. Collection of evidence by exercising torture or other undue influence could not be taken into account. Torture ran counter to the Sharia, and there were a number of regulations in that regard. If such evidence was submitted, it was considered a procedural flaw, and such measures were considered invalid.

As for the independence of judges, it was stressed that they were indeed independent, which was a constitutional principle which could not be changed. The justice system was a sovereign authority, and judges were subject only to Islamic Sharia when carrying out their tasks and duties. One could not interfere with the justice system. The Higher Council of Magistrates worked under the Magistrates Code. No legal competence was given to the Guardian of the Seal when it came to the magistrates.

From the very moment of their arrest, the defendant had the right to a lawyer pursuant to the Code of Criminal Procedure. The defendant had to be informed of that right immediately. The lawyer could be present during all the stages of investigation. The Code of Criminal Procedure prohibited the act of not allowing the defendant to contact any lawyer of their choice. Such a contact needed to be allowed in continuity. The investigator could not seize documents from the defendant’s files.

All particular names provided by the Committee Members had been verified and checked by independent bodies. The measures taken against all individuals mentioned had been looked into, and the allegations had been found to be unfounded. Saudi Arabia had fully cooperated with all the United Nations mechanisms. As soon as a complaint had been received, investigators were sent there to look into the facilities. Forensic and criminal experts were appointed to conduct their investigations which would then go into the file. The body of the victim was immediately investigated, with the view of establishing what they might have been subjected to. Measures taken in such cases were pursuant to same principles and standards laid down in the Istanbul High Protocol.

The website www.nafethah.gov.sa contained names and surnames of those detained and arrested. The website was fully accessible from anywhere in the world, said the delegation. In order to receive more confidential information on those in detention, more personal information had to be provided at the website; the right to privacy was thus fully respected. The website could be used for scheduling different types of visits to prisoners. A number of other services, including those facilitating communication of prisoners, were also provided on the website.

The delegation informed that currently there were 5,216 detainees in Saudi Arabia, out of whom 1,759 had already been sentenced. Measures were being taken to speed up proceedings for the remaining detainees.

Turning to the conditions in prisons, it was said that Saudi Arabia no longer had a problem of prison overcrowding. Some prisoners had been released on medical grounds, whereas others had received amnesty or had been exchanged with other countries. Saudi Arabia had improved prison conditions, and was continuing to do so. Each prisoner lived in an area exceeding four square meters, and some of the cells were being particularly fitted for prisoners with disabilities or other conditions. Many prisons had outside areas for sports activities.

Those in charge of monitoring prison and detention facilities directly listened to the grievances of prisoners, orally or in writing, and without restriction. Prohibiting detainees from contacting their family members, when done, had to follow certain standards and had to be justified and be subject to supervision. That did not prevent the accused from their right to meet an attorney and communicate with him.

Medical workers were trained to identify signs of bodily harm or injuries, when part of the investigation or asked to do so by judicial authorities. Medical professionals were trained for a full four years and then received licenses which allowed them to practice their profession. Forensic medical teams were equipped with the latest technology to conduct their investigations, especially when deaths were believed to have been caused by torture. All investigations included photographs commensurate with international standards.

A delegate explained that investigations and interviews between the accused and the interrogator happened in private. An electronic system was being put in place to record all proceedings. Whatever cameras documented was only used when necessary or when ill-treatment or torture were suspected.

There was no provision preventing Muslim or non-Muslim prisoners from practicing their religion, explained the delegation.

The Human Rights Commission was fully independent, said a delegate. It issued an annual report containing recommendations on the state of human rights in the Kingdom. The King was personally in charge of ensuring that its recommendations were implemented.

Sexual violence was criminalized in Sharia, and all necessary disciplinary measures were used to punish those found guilty. Rehabilitation was provided to the victims. A female-staffed hotline centre had been opened recently to receive all grievances and complaints of domestic violence.

The Kingdom provided medical care in a manner to allow everyone to live a healthy life, said the delegation. Health care was provided in a comprehensive manner, accessible to all. Private health facilities were obliged to receive any urgent cases and to provide quality health care without discrimination.

Visits to prison facilities were carried out by diplomatic representations that had direct access to prisoners from their countries, and if they had any remarks regarding torture, they could express them freely. No complaints related to torture had been received in that respect.

Regarding the delivery of dead bodies of prisoners, a delegate said that a medical examination was always conducted first in order to establish the cause of death. The family was then notified and given a copy of the medical report. The dead body was kept in a hospital until it was given to the family. If the deceased was a foreigner, the family could decide whether to send the body to his home country or have him buried in the Kingdom.

Family members could have access to the files of the detainees, which contained the background of cases, reasons for detention, and details on the investigation, such as the name of the investigator.

The delegation informed that disciplinary proceedings ran in parallel to criminal proceedings for those law enforcement officials suspected of torture. Disciplinary sentences did not run counter to the provisions of the Criminal Code. A public official had to abstain from unlawful contact, namely abuse of office, and respectfully treat any detainee.

Unplanned visits to prisons which could be carried out by the Bureau of Investigation and Public Prosecution at any time of the day or night, the delegation emphasized.

Follow-up Questions

FELICE GAER, Committee Member and Co-Rapporteur for Saudi Arabia, asked how many detainees mentioned by the delegation had been held without charges, and for how long. The figure of 5,216 persons in detention represented a substantial increase to earlier reported numbers.

Terrorism was a terrible scourge, but Ms. Gaer inquired what constituted terrorism. Were human rights monitoring and reporting considered as a threat to the security of the State? Clarification was asked on the provisions in the current law on how long one could be detained before being presented to a judge.

The case of Ra’if Badawi was brought up by the Expert, who referred to the writings by United Nations Special Procedures in that regard. The Saudi response rejected all the “allegations” related to that case. The Rapporteurs had then requested further information on the rationale for the flogging sentence. Was the State party planning to provide more detailed information and respect international norms?

On juvenile justice, the Expert wanted to know whether there was an update.

More information was asked on female judges and the King’s reported power to dismiss judges. How did that provision fit with the independence of judges?

Another Expert asked whether Saudi Arabia would consider ratifying the Optional Protocol, which would allow for visits to places of detention. How did Saudi Arabia effectively monitor places of detention – more details were requested.

The issue of corporal punishment was brought up by an Expert. He also wanted to know about invoking the Convention before a national judge.

Would the prohibition of flogging of prisoners be taken up in a new draft bill, and when would the new law be adopted? Some non-governmental organizations had recommended a moratorium in that regard. Questions were also asked on the prohibition of the corporal punishment of minors as well as the prohibition of public executions. Did Saudi Arabia want to benefit from the technical assistance of the Office of the High Commissioner for Human Rights in drafting relevant legislation?

Did medical doctors take part in prison visits, asked another Expert.

Information was sought on the centre for domestic violence. How many people, if any, had been charged or prosecuted for domestic violence. The hotline was a positive measure, but what was done after calls had been made?

Prompt investigations into alleged cases of tortures were necessary, and the delegation was asked to provide further information in that regard. Alternative sources had alleged a prevailing culture of impunity.

The delegation was asked to provide information on the kafala system.

The issue of executions of persons who committed crimes whilst minors was raised by another Expert, who requested the delegation to address that issue.

She raised the case of a public execution of a person whose body had been subsequently crucified and left to rot in public.

Replies by the Delegation

The delegation said that the information on the public execution provided by the last Expert was inaccurate. Committee Members should use reliable sources of information. The delegation was shocked to be faced by completely unfounded information.

All of the data on the website provided by the delegation was accurate and regularly updated. Why would the State party post false information on the Internet? Did any other States parties have such an up-to-date platform?

The definition of terrorism in the Arabic original was a standard one, said the delegation. That definition was part and parcel of the legal framework of the Kingdom, which had also been affected by terrorism. Sensitization campaigns had been carried out. Terrorism trials in Saudi Arabia were transparent. Any person accused of a crime could have recourse to his counsel, reiterated the delegation.

There were numerous procedures regarding juvenile justice. The death penalty was not applied to those under the age of 18. The law on juvenile protection was being currently finalized.

There was a law on human trafficking in place for 10 years now, said the delegation.

Accession to the Optional Protocol was being studied; Saudi Arabia did not have anything against any human rights instrument.

All prisons in Saudi Arabia were subject to monitoring. Every step was being documented, from the moment detainees set their foot in prisons. Prisoners were informed of all their rights.

From the legal point of view, all articles of the Convention could be invoked in courts, stated the delegation.

Laws in Saudi Arabia did not condone flogging of prisoners. Public executions were regulated by rules. The issue of corporal punishment was addressed in Saudi Arabia’s replies to the list of issues.

Saudi Arabia had a memorandum of cooperation with the Office of the High Commissioner and took advantage of its provisions. “Vision 2030” was a roadmap for the future, including a full collection of all human rights. Civil society was encouraged to be active, as it was a cornerstone in many spheres of life, including the prevention of torture.

The delegation confirmed that doctors indeed visited prison facilities, and their reports were comprehensive in line with the Istanbul Protocol.

In the response to the list of issues, the delegation had provided comprehensive statistics regarding domestic violence. The Kingdom was a huge country, and had one national centre to receive calls from all over the country. There were 13 regional committees in charge solely of quick intervention in cases of domestic violence.

On whether Saudi Arabia provided contributions to the fund for the prevention of torture, it was specified that USD 50,000 had been paid forward in 2007, 2008 and 2009, and more was on its way.

There were contractual relations between the employee and the employer, and there was no kafala system as such in place.

Concluding Remarks

NASSER BIN RAJEH AL-SHAHRANI, Vice President of the Saudi Human Rights Commission, stated that Saudi Arabia was forging ahead in promoting human rights. Torture was a crime under Saudi law and the Kingdom was committed to putting an end to all forms of torture. It cooperated with all international mechanisms and appreciated the expertise of the Committee. The delegation had benefited from all the questions posed by Experts. Desegregated statistics were indeed needed.

JENS MODVIG, Chairperson of the Committee, said that it was a common practice for the Committee to raise alleged cases, and it was up to the delegation to provide information it deemed needed. The delegation could provide additional information in writing within 48 hours.

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