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Saudi Arabia. The future penal code should protect the rights

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(Beirut) – Saudi Arabia should ensure that a future penal code fully complies with international human rights standards, Human Rights Watch said today. Authorities announced in February 2021 that justice reforms, including the country’s first written penal code for discretionary crimes – crimes whose sentences are not specified in Sharia – will be introduced this year, but no details are forthcoming. ‘has been published.

It will be important to clearly define any provisions that criminalize conduct. The penal code should not codify existing arbitrary charges as sweeping offenses that criminalize the rights to freedom of expression, association, and assembly, among other rights. Saudi Arabia should also take this opportunity to completely abolish the death penalty. The government should end its repression of independent civil society and critical voices so that they can provide independent perspectives to increase the chances of success of reform efforts.

“To be fair, independent and effective, the Saudi judiciary urgently needs transformational change, but the repressive climate in which new laws are being drafted does not inspire confidence,” said Michael Page, deputy director for the Middle East at Human Rights. Watch. “The fear is that Saudi Arabia is codifying abusive practices that have developed in the absence of a written penal code for decades.”

Human Rights Watch has repeatedly criticized endemic abuses in Saudi Arabia’s criminal justice system, including long periods of detention without charge or trial, denial of legal assistance, and courts’ reliance on tainted confessions. of torture as the sole basis of conviction. The violations of the rights of the accused are so fundamental and systemic that it is difficult to reconcile the Saudi criminal justice system with a system based on the fundamental principles of the rule of law and international human rights standards.

Human Rights Watch, based on its past documentation and in consultation with Saudi human rights activists abroad, has identified five key reforms that should be incorporated for the promised written penal code to meet international standards.

  1. Ensure that all provisions of the penal code and other relevant laws criminalizing behavior or punishing behavior considered criminal are codified. All the elements that constitute a crime and its potential punishment must be clearly identified so that an ordinary person can determine whether their actions constitute a criminal offense, and the crime must be clearly recognizable under international law.

In the absence of a written penal code, some Saudi judges have focused on proving that a defendant engaged in a certain act, which they then label as a crime, rather than proving that the defendant committed a specific crime defined in law. Previous court decisions are not binding on Saudi judges, and there is little evidence that judges seek consistency in convicting or sentencing for similar crimes. Existing laws, including the notoriously abusive Anti-Terrorism Act and Cybercrime Act, include vague and overbroad provisions that have been widely interpreted and abused. Citizens, residents and visitors have no way of knowing precisely what acts constitute a criminal offence. People can also be punished more than once for the same offence.

  1. Do not include provisions that allow the government to arbitrarily suppress and punish people who have peacefully expressed their views, in violation of international legal obligations, including on the grounds of endangering “national security”.

Since September 2017, three months after Mohammed bin Salman became crown prince, Saudi authorities have detained dozens of prominent Saudis, including clerics, academics, public intellectuals, journalists, human rights activists and advocates. of women’s rights, and convicted many of them on catch-all charges that do not amount to recognizable crimes, including “supporting protests”, “breaking allegiance to the ruler” and “attempting to misrepresent the reputation of the kingdom “.

Saudi courts have convicted many others on charges that are completely unrecognizable under international law. In late December 2020, following a rushed trial, the Specialized Criminal Court convicted prominent women’s rights activist Loujain al-Hathloul on a series of charges entirely related to her peaceful human rights work. The charges included sharing information about women’s rights in Saudi Arabia with journalists, Saudi activists abroad, diplomats, international bodies and human rights organizations.

The Saudi penal code should define “national security” and offenses against it in narrow terms that do not infringe on the internationally guaranteed rights to freedom of expression, association and assembly. The penal code should not criminalize “insults” against religious figures and government leaders.

Saudi Arabia should also amend or repeal abusive laws already introduced, including the Anti-Terrorism Law, the Cybercrimes Law and other laws that allow the government to arbitrarily suppress and punish people who express themselves peacefully in politics.

  1. Do not include provisions that violate the rights of individuals, including privacy, bodily autonomy, health and non-discrimination.

Saudi Arabia punishes people for a range of ‘moral crimes’ that criminalize private consensual relationships such as Kilwa (meeting of an unrelated man and woman, especially alone), Zine (extramarital sex), witchcraft and sorcery, abortion, and other acts related to the expression of non-conforming gender identity or sexual orientation.

The criminalization of these activities contravenes international standards and charges are often applied in a way that discriminates against women. Charges can also be used to prosecute victims of sexual violence or trafficking. For example, pregnancy is used as proof of Zine offences, and women who report rape or sexual violence may be considered to have confessed to having sex and prosecuted instead. These offenses are also punishable by corporal punishment, including flogging and stoning.

  1. Do not include provisions that authorize punishment amounting to torture or cruel, inhuman and degrading treatment, including stoning, amputation and flogging.

Saudi courts have sentenced people to flogging for extramarital sex, drinking alcohol and other offences. Although rarely, if ever, carried out, sentences of stoning have been handed down for adultery. Authorities have used and executed sentences, albeit rarely, for amputation of limbs for theft. In April 2020, Saudi Arabia introduced some criminal justice overhauls, including an end to flogging for tazirdiscretionary crimes.

In a high-profile case, Saudi blogger Raif Badawi was sentenced in January 2015 to 10 years in prison and 1,000 lashes for insulting Islam, although the sentence of flogging was not fully carried out. Badawi was released earlier this year but remains under a travel ban.

The Saudi legal system is based on a harsh interpretation of Sharia, which some clerics say allows such punishments. Other scholars view them as a violation of Sharia standards of legality, evidence, confidentiality, and high evidentiary requirements.

The authorities also resort to flogging without judicial conviction. Women detained in shelters, often for “deviation[ing] of the straight and narrow” or disobeying male guardians, reported witnessing shelter managers whipping women for allegedly breaking the rules.

Saudi Arabia should adopt a definition of torture consistent with article 1 of the Convention against Torture in order to ensure that all acts of torture and cruel, inhuman or degrading treatment constitute criminal offenses and establish penalties that reflect the seriousness of these offences.

5) Do not include the death penalty as a punishment for any offense and explicitly abolish its use.

Saudi Arabia has one of the highest execution rates in the world and applies the death penalty for non-violent crimes, including drug-related offences. International human rights standards restrict the use of the death penalty to only the “most serious crimes”, usually those resulting in death, and only when the right to a fair trial is strictly guaranteed. Saudi Arabia is also one of the few countries to impose the death penalty on juvenile offenders. International law prohibits the death penalty for juvenile offenders.

Despite promises to reduce their use of the death penalty, on March 12 Saudi authorities executed 81 men in one of the country’s largest recent mass executions. The endemic and systemic abuses in the Saudi criminal justice system suggest that it is highly unlikely that any of the men received a fair trial.

Despite statements by Saudi Arabia’s governmental Human Rights Commission in 2020 that no one in Saudi Arabia will be executed for a crime committed as a child, those accused of committing crimes while they were were children can – and continue to do – face the death penalty when accused of such crimes. categories such as “crimes against God” and “crimes of retaliation”.

Capital punishment is unique in its cruelty and purpose, and it is inevitably and universally plagued by arbitrariness, prejudice and error. Human Rights Watch opposes the death penalty in all countries and under all circumstances. Saudi Arabia should abolish this cruel punishment altogether.

The penal code is one of four previously announced reform bills to be introduced this year, the Saudi Press Agency reported. The others are the law of evidence, introduced on December 28, 2021; the Personal Status Law, introduced this month, and the Civic Transactions Law. A Saudi lawyer and activist abroad called the new evidence law “legally sound”, but warned that many provisions protecting the rights of defendants had been included in previous laws and regulations but had not been actually applied.

Saudi authorities are drafting these reform bills against the backdrop of a complete closure of what had once been a narrow space for civil society that left no one inside the country to ensure that the State keeps its promises, or advocate for other necessary changes.

“Saudi Arabia’s reform efforts cannot succeed without public consultation, during which people can share their opinions without fear of arrest,” Page said. “It is imperative that future reforms avoid entrenching existing discrimination and the criminalization of freedoms.